Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to: (1) pay dividends or make any other distributions on its Capital Stock to the Company or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Company or any of its Restricted Subsidiaries; provided that the priority that any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends, distributions or liquidating distributions before dividends, distributions or liquidating distributions are paid in respect of common stock of such Restricted Subsidiary shall not constitute a restriction on the ability to make dividends or distributions on Capital Stock for purposes of this Section 4.08; (2) make loans or advances to the Company or any of its Restricted Subsidiaries (it being understood that the subordination of loans or advances made to the Company or any of its Restricted Subsidiaries to other Indebtedness incurred by the Company or any of its Restricted Subsidiaries shall not be deemed a restriction on the ability to make loans or advances); or (3) sell, lease or transfer any of its properties or assets to the Company or any of its Restricted Subsidiaries. (b) The restrictions in Section 4.08(a) hereof will not apply to encumbrances or restrictions existing under or by reason of: (1) agreements governing Existing Indebtedness and the Credit Agreement as in effect on the date of this Indenture and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained in the amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are not in the good faith judgment of an Officer of the Company materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements on the date of this Indenture; (2) this Indenture, the Notes and the Note Guarantees; (3) agreements governing other Indebtedness permitted to be incurred under the provisions of Section 4.09 hereof and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained therein are in the reasonable good faith judgment of an Officer of the Company, either (a) not materially more restrictive, taken as a whole, than those contained in this Indenture, the Notes and the Note Guarantees or the Credit Agreement as in effect on the date of this Indenture or (b) not reasonably likely to have a material adverse effect on the ability of the Company to make required payments on the Notes; (4) applicable law, rule, regulation or order; (5) any instrument governing Indebtedness or Capital Stock of a Person acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness or Capital Stock was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, and any amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings thereof; provided, that the encumbrances and restrictions in any such amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings are, in the reasonable good faith judgment of an Officer of the Company, no more restrictive, taken as a whole, than those in effect on the date of the acquisition; provided further, that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be incurred; (6) customary non-assignment provisions in Hydrocarbon purchase and sale or exchange agreements or similar operational agreements or in licenses, easements or leases, in each case, entered into in the ordinary course of business; (7) purchase money obligations for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on the property purchased or leased of the nature described in clause (3) of Section 4.08(a); (8) any agreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition; (9) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, in the reasonable good faith judgment of an Officer of the Company, not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced; (10) Liens permitted to be incurred under the provisions of Section 4.12 that limit the right of the debtor to dispose of the assets subject to such Liens; (11) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment) entered into with the approval of the Company’s Board of Directors, which limitation is applicable only to the assets that are the subject of such agreements; (12) encumbrances or restrictions applicable only to a Restricted Subsidiary that is not a Domestic Subsidiary; (13) encumbrances or restrictions on cash or other deposits or net worth imposed by customers or lessors under contracts or leases entered into in the ordinary course of business; (14) customary encumbrances and restrictions contained in agreements of the types described in the definition of Permitted Business Investments; (15) agreements governing Hedging Obligations incurred in the ordinary course of business; and (16) any encumbrance or restriction with respect to an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Unrestricted Subsidiary. In each case set forth above, notwithstanding any stated limitation on the assets or property that may be subject to such encumbrance or restriction, an encumbrance or restriction on a specified asset or property or group or type of assets or property may also apply to all improvements, additions, repairs, attachments or accessions thereto, assets and property affixed or appurtenant thereto, parts, replacements and substitutions therefor, and all products and proceeds thereof, including dividends, distributions, interest and increases in respect thereof.
Appears in 8 contracts
Sources: Indenture (Extraction Oil & Gas, Inc.), Indenture (Parsley Energy, Inc.), Indenture (Extraction Oil & Gas, Inc.)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company will not, and will not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock to the Company or any of its Restricted SubsidiariesSubsidiary, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Company or any of its Restricted Subsidiaries; provided that the priority that any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends, distributions or liquidating distributions before dividends, distributions or liquidating distributions are paid in respect of common stock of such Restricted Subsidiary shall not constitute a restriction on the ability to make dividends or distributions on Capital Stock for purposes of this Section 4.08Subsidiary;
(2) make loans or advances to the Company or any of its Restricted Subsidiaries (it being understood that the subordination of loans or advances made to the Company or any of its Restricted Subsidiaries to other Indebtedness incurred by the Company or any of its Restricted Subsidiaries shall not be deemed a restriction on the ability to make loans or advances)Subsidiary; or
(3) sell, lease or transfer any of its properties or assets to the Company or any Restricted Subsidiary, provided that (x) the priority of its any preferred stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill period to) loans or advances made to the Company or any Restricted SubsidiariesSubsidiary to other Indebtedness incurred by the Company or any Restricted Subsidiary, shall not be deemed to constitute such an encumbrance or restriction.
(b) The restrictions in Section 4.08(a) hereof will not apply to encumbrances or restrictions existing under or by reason of:
(1) agreements governing Existing Indebtedness Indebtedness, charter documents and the Credit Agreement shareholder agreement as in effect on the date of this Indenture Issue Date and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained in the amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are not in materially less favorable to the good faith judgment of an Officer Holders of the Company materially more restrictiveNotes, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements on the date of this IndentureIssue Date (as determined in good faith by the Company);
(2) this Indenture, the Notes and the Note Guarantees;
(3) agreements governing other Indebtedness permitted to be incurred under the provisions of Section 4.09 hereof and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the restrictions therein are not materially less favorable to the Holders of the Notes than is customary in comparable financings (as determined in good faith by the Company) and the Company determines at the time of the incurrence of such Indebtedness that such encumbrances or restrictions contained therein are will not adversely effect, in the reasonable good faith judgment of an Officer of any material respect, the Company, either (a) not materially more restrictive, taken as a whole, than those contained in this Indenture, the Notes and the Note Guarantees or the Credit Agreement as in effect on the date of this Indenture or (b) not reasonably likely to have a material adverse effect on the ’s ability of the Company to make required principal or interest payments on the Notes;
(4) applicable law, rule, regulation or orderorder or the terms of any license, authorization, concession or permit;
(5) any instrument governing Indebtedness or Capital Stock of a Person acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness or Capital Stock was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, and any amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings thereof; provided, that the encumbrances and restrictions in any such amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings are, in the reasonable good faith judgment of an Officer of the Company, no more restrictive, taken as a whole, than those in effect on the date of the acquisition; provided further, that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be incurred;
(6) customary non-assignment and similar provisions in Hydrocarbon purchase contracts, leases and sale or exchange agreements or similar operational agreements or in licenses, easements or leases, in each case, licenses entered into in the ordinary course of business;
(7) purchase money obligations for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on the property purchased or leased of the nature described in clause (3Section 4.08(a)(3) of Section 4.08(a)hereof;
(8) any agreement for the sale or other disposition of the Capital Stock or all or substantially all of the property and assets of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(9) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, in the reasonable good faith judgment of an Officer of the Company, are not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(10) Liens permitted to be incurred under the provisions of Section 4.12 hereof that limit the right of the debtor to dispose of the assets subject to such Liens;
(11) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment) entered into with the approval of the Company’s Board of Directors, which limitation is applicable only to the assets that are the subject of such agreements;
(12) encumbrances or restrictions applicable only to a Restricted Subsidiary that is not a Domestic Subsidiary;
(13) encumbrances or restrictions on cash or other deposits or net worth imposed by customers or lessors suppliers or required by insurance, surety or bonding companies, in each case, under contracts or leases entered into in the ordinary course of business;
(13) any customary Productive Asset Leases for Vessels and other assets used in the ordinary course of our business; provided that such encumbrance or restriction only extends to the Vessel or other asset financed in such Productive Asset Lease;
(14) customary encumbrances any Restricted Investment not prohibited by Section 4.07 hereof and restrictions contained in agreements of the types described in the definition of any Permitted Business InvestmentsInvestment;
(15) any encumbrance or restriction existing with respect to any Unrestricted Subsidiary or the property or assets of such Unrestricted Subsidiary that is designated as a Restricted Subsidiary in accordance with the terms of this Indenture at the time of such designation and not incurred in contemplation of such designation, which encumbrances or restrictions are not applicable to any Person other than such Unrestricted Subsidiary or the property or assets of such Unrestricted Subsidiary; provided that the encumbrances or restrictions are customary for the business of such Unrestricted Subsidiary and would not, at the time agreed to, be expected (as determined in good faith by the Company) to affect the ability of the Company and the Guarantors to make payments under the Notes and this Indenture;
(16) customary encumbrances or restrictions contained in agreements governing in connection with Hedging Obligations incurred in the ordinary course of businesspermitted under this Indenture; and
(1617) any encumbrance or restriction with respect to an Unrestricted Subsidiary pursuant to or by reason of an existing under any agreement that extends, renews, refinances, replaces, amends, modifies, restates or supplements the Unrestricted Subsidiary is a party to agreements containing the encumbrances or entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiaryrestrictions in Section 4.08(b)(1) through Section 4.08(b)(16) hereof, or in this Section 4.08(b)(17); provided that such agreement was not entered into in anticipation the terms and conditions of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance encumbrances or restriction does not extend restrictions are no more restrictive in any material respect than those under or pursuant to any assets the agreement so extended, renewed, refinanced, replaced, amended, modified, restated or property of the Company or any other Restricted Subsidiary other than the assets and property of such Unrestricted Subsidiary. In each case set forth above, notwithstanding any stated limitation on the assets or property that may be subject to such encumbrance or restriction, an encumbrance or restriction on a specified asset or property or group or type of assets or property may also apply to all improvements, additions, repairs, attachments or accessions thereto, assets and property affixed or appurtenant thereto, parts, replacements and substitutions therefor, and all products and proceeds thereof, including dividends, distributions, interest and increases in respect thereofsupplemented.
Appears in 5 contracts
Sources: Indenture (Viking Holdings LTD), Indenture (Viking Holdings LTD), Indenture (Viking Holdings LTD)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock to the Company or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Company or any of its Restricted Subsidiaries; provided that the priority that any series of Preferred Stock preferred stock of a Restricted Subsidiary has in receiving dividends, distributions dividends or liquidating distributions before dividends, distributions dividends or liquidating distributions are paid in respect of common stock of such Restricted Subsidiary shall not constitute a restriction on the ability to make dividends or distributions on Capital Stock for purposes of this Section 4.084.08(a);
(2) make loans or advances to the Company or any of its Restricted Subsidiaries (it being understood that the subordination of loans or advances made to the Company or any of its such Restricted Subsidiaries Subsidiary to other Indebtedness incurred by the Company or any of its such Restricted Subsidiaries Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its properties or assets to the Company or any of its Restricted Subsidiaries.
(b) The restrictions in Section 4.08(a) hereof will not apply to encumbrances or restrictions existing under or by reason of:
(1) agreements governing the Credit Agreement, any Existing Indebtedness and the or any Credit Agreement Facilities or any other agreements or instruments, in each case as in effect on the date of this Indenture Issue Date and any amendments, restatements, modifications, renewals, extensions, increases, supplements, refundings, replacements or refinancings of those agreementsagreements or the Indebtedness to which they relate; provided that the encumbrances or restrictions contained in the amendments, restatements, modifications, renewals, extensions, increases, supplements, refundings, replacements or refinancings are not are, in the reasonable good faith judgment of an the Chief Financial Officer of the Company General Partner, not materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements on the date of this IndentureIssue Date;
(2) this Indenture, the Notes and the Note Guarantees;
(3) agreements governing other Indebtedness permitted to be incurred under the provisions of Section 4.09 hereof and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained therein are are, in the reasonable good faith judgment of an the Chief Financial Officer of the CompanyGeneral Partner, either (a) not materially more restrictive, taken as a whole, than those the provisions contained in this Indenture, the Notes and the Note Guarantees or the Credit Agreement and in this Indenture as in effect on the date of this Indenture or (b) not reasonably likely to have a material adverse effect on the ability of the Company to make required payments on the NotesIssue Date;
(4) the issuance of preferred stock by a Restricted Subsidiary or the payment of dividends thereon in accordance with the terms thereof; provided that issuance of such preferred stock is permitted pursuant to Section 4.09 hereof and the terms of such preferred stock do not expressly restrict the ability of a Restricted Subsidiary to pay dividends or make any other distributions on its Capital Stock (other than requirements to pay dividends or liquidation preferences on such preferred stock prior to paying any dividends or making any other distributions on such other Capital Stock);
(5) applicable law, rule, regulation regulation, order, approval, license, permit or ordersimilar restriction;
(56) any instrument governing Indebtedness or Capital Stock of a Person acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness or Capital Stock was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, acquired and any amendments, restatements, modifications, renewals, extensions, increases, supplements, increases, refundings, replacements or refinancings thereof; providedprovided that, that the encumbrances and or restrictions contained in any such amendments, restatements, modifications, renewals, extensions, increases, supplements, increases, refundings, replacements or refinancings are, in the reasonable good faith judgment of an the Chief Financial Officer of the CompanyGeneral Partner, no not materially more restrictive, taken as a whole, than those in effect on the date of the acquisition; provided provided, further, that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be incurred;
(67) customary non-assignment provisions in Hydrocarbon purchase and sale contracts or exchange agreements or similar operational agreements or in licenses, easements or leases, in each case, entered into in the ordinary course of business;
(7) 8) purchase money obligations obligations, security agreements or mortgage financings for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on the property purchased or leased of the nature described in clause (3) of Section 4.08(a)) hereof;
(8) 9) any agreement for the sale or other disposition of the Equity Interests in, or all or substantially all of the properties or assets of, a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its the sale or other disposition;
(910) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, in the reasonable good faith judgment of an Officer of the Company, are not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(1011) Liens permitted to be incurred under the provisions of Section 4.12 hereof that limit the right of the debtor to dispose of the assets subject to such Liens;
(1112) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment) entered into with the approval of the Company’s Board of Directors, which limitation is applicable only to the assets that are the subject of such agreements;
(1213) encumbrances or restrictions applicable only any instrument governing Indebtedness of a FERC Subsidiary; provided that such Indebtedness was otherwise permitted by the terms of this Indenture to a Restricted Subsidiary that is not a Domestic Subsidiarybe incurred;
(1314) encumbrances or restrictions on cash cash, Cash Equivalents or other deposits or net worth imposed by customers or lessors under contracts or leases entered into in the ordinary course of business;
(1415) customary encumbrances any agreement or instrument relating to any property or assets acquired after the Issue Date, so long as such encumbrance or restriction relates only to the property or assets so acquired and restrictions contained is not and was not created in agreements anticipation of the types described in the definition of Permitted Business Investmentssuch acquisition;
(1516) agreements governing Hedging Obligations incurred in the ordinary course of businesspermitted from time to time under this Indenture; and
(1617) Indebtedness incurred or Capital Stock issued by any encumbrance or restriction with respect to an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that the restrictions contained in the agreements or instruments governing such Indebtedness or Capital Stock (a) apply only in the event of a payment default or a default with respect to a financial covenant in such agreement was or instrument or (b) will not entered into in anticipation of materially affect the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend Company’s ability to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Unrestricted Subsidiary. In each case set forth above, notwithstanding any stated limitation on the assets or property that may be subject to such encumbrance or restriction, an encumbrance or restriction on a specified asset or property or group or type of assets or property may also apply to all improvements, additions, repairs, attachments or accessions thereto, assets and property affixed or appurtenant thereto, parts, replacements and substitutions therefor, and all products and proceeds thereof, including dividends, distributionsmake principal, interest and increases premium, if any, on the Notes, as determined in respect thereofthe reasonable good faith judgment of the Chief Executive Officer and the Chief Financial Officer of the General Partner.
Appears in 5 contracts
Sources: Indenture (NGL Energy Partners LP), Indenture (NGL Energy Partners LP), Indenture (NGL Energy Partners LP)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company Issuer will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock to the Company Issuer or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Company Issuer or any of its Restricted Subsidiaries; provided that the priority that any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends, distributions or liquidating distributions before dividends, distributions or liquidating distributions are paid in respect of common stock of such Restricted Subsidiary shall not constitute a restriction on the ability to make dividends or distributions on Capital Stock for purposes of this Section 4.08;or
(2) make loans or advances to the Company or any of its Restricted Subsidiaries (it being understood that the subordination of loans or advances made to the Company or any of its Restricted Subsidiaries to other Indebtedness incurred by the Company or any of its Restricted Subsidiaries shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its properties or assets to the Company Issuer or any of its Restricted Subsidiaries.
(b) The restrictions in Section 4.08(a4.06(a) hereof will not apply to encumbrances or restrictions existing under or by reason of:
(1) applicable law, rule, regulation, order, approval, license, permit or similar restriction;
(2) restrictions contained in any documents or agreements evidencing, relating to or otherwise governing Existing Indebtedness and the Credit Agreement as a Receivables Financing with respect to any Receivables Subsidiary;
(3) contractual encumbrances or restrictions in effect under any Indebtedness outstanding on the date of this Indenture and under any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained in the amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are not in the good faith judgment of an Officer of the Company materially more restrictive, taken as a whole, with respect Indebtedness otherwise permitted pursuant to such dividend and other payment restrictions than those contained in those agreements on the date of this Indenture;
(24) this Indenture, the Notes and the Note Guarantees;
(3) agreements governing other any restrictions imposed by any agreement relating to secured Indebtedness permitted to be incurred under the provisions of Section 4.09 hereof and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained therein are in the reasonable good faith judgment of an Officer of the Company, either (a) not materially more restrictive, taken as a whole, than those contained in this Indenture, the Notes and the Note Guarantees or the Credit Agreement as in effect on the date of by this Indenture or (b) not reasonably likely to have a material adverse effect on the ability of extent that such restrictions apply only to the Company to make required payments on the Notes;
(4) applicable law, rule, regulation or orderassets securing such Indebtedness;
(5) any instrument governing Indebtedness or Capital Stock of a Person acquired by the Company or any of its Restricted Subsidiaries as agreement in effect at the time of such acquisition (except to the extent Restricted Subsidiary becomes a Restricted Subsidiary, so long as such Indebtedness or Capital Stock agreement was incurred in connection with or not entered into in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, and any amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings thereof; provided, that the encumbrances and restrictions in any such amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings are, in the reasonable good faith judgment of an Officer of the Company, no more restrictive, taken as person becoming a whole, than those in effect on the date of the acquisition; provided further, that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be incurredRestricted Subsidiary;
(6) customary non-assignment restrictions contained in any agreement relating to the sale of any asset permitted under Section 4.08 pending the consummation of such sale;
(7) customary provisions in Hydrocarbon purchase joint venture agreements and sale or exchange other similar agreements or similar operational agreements or in licenses, easements or leases, in each case, applicable to joint ventures entered into in the ordinary course of business;
(7) purchase money obligations for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on the property purchased or leased of the nature described in clause (3) of Section 4.08(a);
(8) any agreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(9) Permitted Refinancing Indebtedness; provided that the restrictions customary provisions contained in the agreements governing such Permitted Refinancing Indebtedness are, in the reasonable good faith judgment of an Officer of the Company, not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(10) Liens permitted to be incurred under the provisions of Section 4.12 that limit the right of the debtor to dispose of the assets subject to such Liens;
(11) provisions limiting the disposition leases or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements licenses and other similar agreements (including agreements entered into in connection with a Restricted Investment) entered into with the approval of the Company’s Board of Directors, which limitation is applicable only to the assets that are the subject of such agreements;
(12) encumbrances or restrictions applicable only to a Restricted Subsidiary that is not a Domestic Subsidiary;
(13) encumbrances or restrictions on cash or other deposits or net worth imposed by customers or lessors under contracts or leases entered into in the ordinary course of business;
(149) customary encumbrances and restrictions contained in agreements of the types described in the definition of Permitted Business Investments;
(15) agreements governing Hedging Obligations incurred connection with deposits in the ordinary course of business;
(10) customary provisions restricting assignment of any agreement entered into in the ordinary course of business;
(11) encumbrances on property that exist at the time the property was acquired by the Issuer or a Restricted Subsidiary; and
(1612) any encumbrance or restriction with respect restrictions described in clauses (1) and (2) of Section 4.06(a), but only to an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided extent that such agreement was restrictions do not entered into in anticipation materially adversely affect the consolidated cash position of the Unrestricted Subsidiary becoming a Issuer and its Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Unrestricted Subsidiary. In each case set forth above, notwithstanding any stated limitation on the assets or property that may be subject to such encumbrance or restriction, an encumbrance or restriction on a specified asset or property or group or type of assets or property may also apply to all improvements, additions, repairs, attachments or accessions thereto, assets and property affixed or appurtenant thereto, parts, replacements and substitutions therefor, and all products and proceeds thereof, including dividends, distributions, interest and increases in respect thereofSubsidiaries.
Appears in 4 contracts
Sources: Indenture (Alpha Natural Resources, Inc.), Indenture (Alpha Natural Resources, Inc.), Supplemental Indenture (Massey Energy Co)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
to do any of the following: (1a)(i) pay dividends or make any other distributions on its Capital Stock to the Company or any of its Restricted Subsidiaries, Subsidiaries on its Capital Stock or with respect to any other interest or participation in, or measured by, its profits, or (ii) pay any Indebtedness owed to the Company or any of its Restricted Subsidiaries; provided that the priority that any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends, distributions or liquidating distributions before dividends, distributions or liquidating distributions are paid in respect of common stock of such Restricted Subsidiary shall not constitute a restriction on the ability to make dividends or distributions on Capital Stock for purposes of this Section 4.08;
(2b) make loans or advances to the Company or any of its Restricted Subsidiaries or (it being understood that the subordination of loans or advances made to the Company or any of its Restricted Subsidiaries to other Indebtedness incurred by the Company or any of its Restricted Subsidiaries shall not be deemed a restriction on the ability to make loans or advances); or
(3c) sell, lease or transfer any of its properties or assets to the Company or any of its Restricted Subsidiaries.
(b) The restrictions in Section 4.08(a) hereof will not apply to , except for such encumbrances or restrictions existing under or by reason of:
of (1) agreements governing Existing Indebtedness and the Credit Agreement as in effect on the date of this Indenture Facilities, and any amendments, modifications, restatements, modificationsrenewals, renewalsincreases, supplements, refundings, replacements or refinancings of those agreements; thereof, provided that the encumbrances or restrictions contained in the such agreements and amendments, modifications, restatements, modificationsrenewals, renewalsincreases, supplements, refundings, replacements or refinancings are not in materially less favorable to the good faith judgment of an Officer holders of the Company materially more restrictiveNotes, taken as a whole, with respect to such dividend and other payment restrictions than those contained contained, in those agreements on the date case of this Indenture;
(2) this IndentureCredit Facilities, the Notes and the Note Guarantees;
(3) in agreements governing other Indebtedness permitted to be incurred under the provisions of Section 4.09 hereof and any amendmentsCredit Facilities, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained therein are in the reasonable good faith judgment of an Officer of the Company, either (a) not materially more restrictive, taken as a whole, than those contained in this Indenture, the Notes and the Note Guarantees or the Credit Agreement case as in effect on the date of this Indenture or Indenture, (b2) not reasonably likely to have a material adverse effect on the ability of the Company to make required payments on this Indenture, the Notes;
, the Subsidiary Guarantees and the First Lien Notes (3) any agreement for the sale or other disposition of Equity Interests in a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending the sale or other disposition, (4) applicable law, rule, regulation or order;
(5) any instrument governing Indebtedness or Capital Stock of a Person acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness or Capital Stock was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, and any amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings thereof; provided, that the encumbrances and restrictions in any such amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings are, in the reasonable good faith judgment of an Officer of the Company, no more restrictive, taken as a whole, than those in effect on the date of the acquisition; provided further, that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be incurred;
, (5) by reason of customary provisions restricting the subletting or assignment of any lease or the transfer of copyrighted or patented materials, (6) customary non-assignment provisions in Hydrocarbon purchase and sale or exchange agreements or similar operational agreements or in licenses, easements or leases, in each case, entered into in the ordinary course of business;
(7) purchase money obligations for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on the property purchased or leased of the nature described in clause (3c) of Section 4.08(a);
above on the property so acquired, (8) any agreement 7) customary provisions in agreements for the sale of property or assets, (8) customary provisions in agreements that restrict the assignment of such agreements or rights thereunder, (9) provisions with respect to the disposition or distribution of assets or property in any joint venture agreement, assets sale agreement, stock sale agreement or other disposition similar agreement in each case entered into in the ordinary course of a Restricted Subsidiary that business, but in each case only to the extent such encumbrance or restriction relates to the transfer of the property, or encumbers or restricts distributions by that Restricted Subsidiary pending its sale the assets, subject to such agreement, (10) restrictions on cash or other disposition;
deposits or net worth imposed by customers under contracts entered into in the ordinary course of business, (911) Permitted Refinancing Indebtedness; , provided that the encumbrances and restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, in the reasonable good faith judgment of an Officer of the Company, are not materially more restrictiveless favorable to the Holders, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
, (1012) any Liens permitted to be incurred under the provisions of not prohibited by Section 4.12 that limit the right of the debtor to dispose of the assets subject to such Liens;
(11) provisions limiting the disposition , or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment) entered into with the approval of the Company’s Board of Directors, which limitation is applicable only to the assets that are the subject of such agreements;
(12) encumbrances or restrictions applicable only to a Restricted Subsidiary that is not a Domestic Subsidiary;
(13) encumbrances or restrictions on cash or other deposits or net worth imposed by customers or lessors under contracts or leases entered into in the ordinary course of business;
(14) customary encumbrances and restrictions contained in agreements of the types described in the definition of Permitted Business Investments;
(15) agreements governing Hedging Obligations incurred in the ordinary course of business; and
(16) any encumbrance or restriction with respect to an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Unrestricted Subsidiary. In each case set forth above, notwithstanding any stated limitation on the assets or property that may be subject to such encumbrance or restriction, an encumbrance or restriction on a specified asset or property or group or type of assets or property may also apply to all improvements, additions, repairs, attachments or accessions thereto, assets and property affixed or appurtenant thereto, parts, replacements and substitutions therefor, and all products and proceeds thereof, including dividends, distributions, interest and increases in respect thereofapplicable law.
Appears in 4 contracts
Sources: Indenture (CGG), Indenture (CGG Marine B.V.), Indenture (CGG Marine B.V.)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company Issuer will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock to the Company Issuer or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Company Issuer or any of its Restricted Subsidiaries; provided that (i) the priority that any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends, distributions dividends or liquidating distributions before dividends, distributions dividends or liquidating distributions are paid in respect of common stock of such Restricted Subsidiary shall not constitute a restriction on the ability to pay or make dividends or distributions on Capital Stock for purposes of this Section 4.084.08 and (ii) the subordination of Indebtedness owed to the Issuer or any Restricted Subsidiary to other Indebtedness incurred by any Restricted Subsidiary shall not be deemed a restriction on the ability to pay Indebtedness;
(2) make loans or advances to the Company Issuer or any of its Restricted Subsidiaries (it being understood that the subordination of loans or advances made to the Company Issuer or any of its Restricted Subsidiaries Subsidiary to other Indebtedness incurred by the Company Issuer or any of its Restricted Subsidiaries Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its properties or assets to the Company Issuer or any of its Restricted Subsidiaries.
(b) The restrictions in Section 4.08(a) hereof will not apply to encumbrances or restrictions existing under or by reason of:
(1) agreements governing Existing Indebtedness and the Credit Agreement as in effect on the date of this Indenture and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained in the amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are not in the good faith judgment of an Officer of the Company materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements on the date of this Indenture, as determined in good faith by the Issuer;
(2) this Indenture, the Notes and the Note Guarantees;
(3) agreements governing other Indebtedness permitted to be incurred under the provisions of Section 4.09 hereof and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained therein are in the reasonable good faith judgment of an Officer of the Company, either (a) not materially more restrictive, taken as a whole, than those contained in this Indenture, the Notes and the Note Guarantees or the Credit Agreement as in effect on the date of this Indenture or (b) not reasonably likely to have a material adverse effect on Indenture, as determined in good faith by the ability of the Company to make required payments on the NotesIssuer;
(4) applicable law, rule, regulation regulation, order, approval, license, permit or ordersimilar restriction;
(5) any instrument governing Indebtedness or Capital Stock or other agreement of a Person acquired (including by merger or consolidation), or the assets of which are acquired, by the Company Issuer or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness or Capital Stock or other agreement was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, and any amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings thereof; provided, that the encumbrances and restrictions in any such amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings are, in the reasonable good faith judgment of an Officer of the Company, no more restrictive, taken as a whole, than those in effect on the date of the acquisition; provided further, that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be incurred;
(6) customary non-assignment provisions in Hydrocarbon purchase and sale or exchange agreements or similar operational agreements or in licenses, easements or leases, in each case, entered into in the ordinary course of business;
(7) purchase money obligations for property acquired in the ordinary course of business and Capital Finance Lease Obligations that impose restrictions on the property purchased or leased of the nature described in clause (3) of Section 4.08(a);
(8) any agreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(9) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, in the reasonable good faith judgment of an Officer of the Company, are not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced, as determined in good faith by the Issuer;
(10) Liens permitted to be incurred under the provisions of Section 4.12 that limit the right of the debtor to dispose of the assets subject to such Liens;
(11) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements, shareholders’ agreements, partnership agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment) entered into with the approval of the Company’s Board of DirectorsDirectors of the Issuer or in the ordinary course of business, which limitation is applicable only to the assets or property that are is the subject of such agreements;
(12) encumbrances any agreement or restrictions applicable instrument relating to any property or assets acquired after the date of this Indenture, so long as such encumbrance or restriction relates only to a Restricted Subsidiary that the property or assets so acquired and is not a Domestic Subsidiaryand was not created in anticipation of such acquisition;
(13) encumbrances or restrictions on cash cash, Cash Equivalents or other deposits or net worth requirements imposed by customers or lessors under contracts or leases entered into in the ordinary course of business;
(14) any Preferred Stock issued by a Restricted Subsidiary of the Issuer; provided that issuance of such Preferred Stock is permitted pursuant to Section 4.09 and the terms of such Preferred Stock do not expressly restrict the ability of a Restricted Subsidiary of the Issuer to pay dividends or make any other distributions on its Equity Interests (other than requirements to pay dividends or liquidation preferences on such Preferred Stock prior to paying any dividends or making any other distributions on such other Equity Interests);
(15) any encumbrance or restriction contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was incurred if (x) either (a) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant in such Indebtedness or agreement or (b) any such encumbrance or restriction will not materially affect the Issuer’s ability to make principal or interest payments on the Notes, as determined in good faith by the Issuer and (y) the encumbrance or restriction is not materially more disadvantageous to the Holders than is customary in comparable financings or agreements, as determined in good faith by the Issuer;
(16) Hedging Obligations permitted from time to time under this Indenture;
(17) encumbrances and restrictions contained in contracts entered into in the ordinary course of business, not relating to any Indebtedness, and that do not, taken as a whole, detract from the value of, or from the ability of the Issuer and its Restricted Subsidiaries to realize the value of, property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer or any Restricted Subsidiary, as determined in good faith by the Issuer; provided that such encumbrances or restrictions will not materially affect the Issuer’s ability to make principal or interest payments on the Notes, as determined in good faith by the Issuer;
(18) customary encumbrances and restrictions contained in agreements of the types described in the definition of “Permitted Business Investments;”; or
(15) agreements governing Hedging Obligations incurred in the ordinary course of business; and
(1619) any encumbrance or restriction with respect to an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Unrestricted SubsidiaryPermitted Investment. In each case set forth above, notwithstanding any stated limitation on the assets or property that may be subject to such encumbrance or restriction, an encumbrance or restriction on a specified asset or property or group or type of assets or property may also apply to all improvements, additions, repairs, attachments or accessions thereto, assets and property affixed or appurtenant thereto, parts, replacements and substitutions therefor, contractual rights relating primarily thereto and all products and proceeds thereof, thereof (including dividends, distributions, interest distributions and increases in respect thereof).
Appears in 3 contracts
Sources: Indenture (Range Resources Corp), Indenture (Range Resources Corp), Indenture (Range Resources Corp)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or permit otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) (i) pay dividends or make any other distributions on its Capital Stock to the Company or any of Restricted Subsidiary (A) on its Restricted Subsidiaries, Capital Stock or (B) with respect to any other interest or participation in, or measured by, its profits, or (ii) pay any Indebtedness owed to the Company or any of its Restricted Subsidiaries; provided that the priority that any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends, distributions or liquidating distributions before dividends, distributions or liquidating distributions are paid in respect of common stock of such Restricted Subsidiary shall not constitute a restriction on the ability to make dividends or distributions on Capital Stock for purposes of this Section 4.08Subsidiary;
(2) make loans or advances to the Company or any of its Restricted Subsidiaries (it being understood that the subordination of loans or advances made to the Company or any of its Restricted Subsidiaries to other Indebtedness incurred by the Company or any of its Restricted Subsidiaries shall not be deemed a restriction on the ability to make loans or advances)Subsidiary; or
(3) sell, lease or transfer any of its properties or assets to the Company or any of its Restricted Subsidiaries.
(b) The Subsidiary. However, the preceding restrictions in Section 4.08(a) hereof will not apply to encumbrances or restrictions existing under or by reason of:
(1) agreements governing Existing Indebtedness and the Credit Agreement as in effect on as of the date of this Indenture hereof, and any amendments, modifications, restatements, modificationsrenewals, renewalsincreases, supplements, refundings, replacements or refinancings of those agreementsthereof; provided that the encumbrances or restrictions contained in the such amendments, modifications, restatements, modificationsrenewals, renewalsincreases, supplements, refundings, replacements or refinancings are not no more restrictive in the good faith judgment of an Officer of the Company materially more restrictive, taken as a whole, aggregate with respect to such dividend and other payment restrictions than those contained in those the agreements governing Existing Indebtedness as in effect on the date of this Indenturehereof;
(2) this Indenturethe Credit Agreement as in effect as of the date hereof, the Notes and the Note Guarantees;
(3) agreements governing other Indebtedness permitted to be incurred under the provisions of Section 4.09 hereof and any amendments, modifications, restatements, modificationsrenewals, renewalsincreases, supplements, refundings, replacements or refinancings of those agreementsthereof; provided that the encumbrances such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or restrictions contained therein refinancings are no more restrictive in the reasonable good faith judgment of an Officer of the Company, either (a) not materially more restrictive, taken as a whole, aggregate with respect to such dividend and other payment restrictions than those contained in this Indenture, the Notes and the Note Guarantees or the Credit Agreement as in effect on the date of hereof;
(3) this Indenture or (b) not reasonably likely to have a material adverse effect on the ability of the Company to make required payments on and the Notes;
(4) applicable law, including, for the avoidance of doubt, any applicable rule, regulation or order;
(5) any instrument governing Indebtedness or Capital Stock of a Person acquired by the Company or any of its Restricted Subsidiaries Subsidiary as in effect at the time of such acquisition (except to the extent such Indebtedness or Capital Stock was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, and any amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings thereof; provided, that the encumbrances and restrictions in any such amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings are, in the reasonable good faith judgment of an Officer of the Company, no more restrictive, taken as a whole, than those in effect on the date of the acquisition; provided further, that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be incurred;
(6) customary non-assignment provisions in Hydrocarbon purchase and sale contracts, licenses or exchange agreements or similar operational agreements or in licenses, easements or leases, in each case, leases entered into in the ordinary course of businessbusiness and consistent with past practices;
(7) purchase money obligations for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on the property purchased or leased of the nature described in clause (3) of Section 4.08(a);
(8) any agreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(8) restrictions on the transfer of property subject to mortgages, purchase money obligations or Capital Lease Obligations otherwise permitted by clause (5) of Section 4.10;
(9) Permitted permitted Refinancing Indebtedness; , provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, are no more restrictive in the reasonable good faith judgment of an Officer of the Company, not materially more restrictive, taken as a whole, aggregate than those contained in the agreements governing the Indebtedness being refinanced;
(10) Liens permitted to be incurred under the provisions of Section 4.12 4.11 that limit the right of the debtor to dispose of the assets subject to such Liens;
(11) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Permitted Investment) entered into with the approval of the Company’s Board of Directors, which limitation is applicable only to the assets that are the subject of such agreements;
(12) encumbrances or restrictions applicable only to a Restricted Subsidiary that is not a Domestic Subsidiary;
(13) encumbrances or restrictions on cash or other deposits or net worth imposed by customers or lessors under contracts or leases entered into in the ordinary course of business;
(14) customary encumbrances and restrictions contained in agreements of the types described in the definition of Permitted Business Investments;
(1513) agreements governing Hedging Obligations other Indebtedness permitted to be incurred under the provisions of Section 4.10 and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the restrictions therein will not materially affect the Company’s ability to make anticipated principal or interest payments on the Notes (as determined in good faith by senior management or the ordinary course Board of businessDirectors of the Company); and
(1614) any encumbrance or restriction with respect to an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Unrestricted Subsidiary. In each case set forth above, notwithstanding any stated limitation on the assets or property that may be subject to such encumbrance or restriction, an encumbrance Lien or restriction on a specified asset Securitization Subsidiary that, in the good faith judgment of senior management or property or group or type the Board of assets or property may also Directors of the Company, is reasonably required in connection therewith; provided, however, that such restrictions only apply to all improvements, additions, repairs, attachments or accessions thereto, assets and property affixed or appurtenant thereto, parts, replacements and substitutions therefor, and all products and proceeds thereof, including dividends, distributions, interest and increases in respect thereofSecuritization Subsidiaries.
Appears in 3 contracts
Sources: Senior Notes Indenture (Iron Mountain Inc), Senior Indenture (Iron Mountain Inc), Senior Indenture (Iron Mountain Inc)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company Issuer will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock to the Company Issuer or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness indebtedness owed to the Company Issuer or any of its Restricted Subsidiaries; provided that (i) the priority that any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends, distributions dividends or liquidating distributions before dividends, distributions dividends or liquidating distributions are paid in respect of common stock of such Restricted Subsidiary shall not constitute a restriction on the ability to pay or make dividends or distributions on Capital Stock for purposes of this Section 4.084.08 and (ii) the subordination of Indebtedness owed to the Issuer or any Restricted Subsidiary to other Indebtedness incurred by any Restricted Subsidiary shall not be deemed a restriction on the ability to pay Indebtedness;
(2) make loans or advances to the Company Issuer or any of its Restricted Subsidiaries (it being understood that the subordination of loans or advances made to the Company Issuer or any of its Restricted Subsidiaries Subsidiary to other Indebtedness incurred by the Company Issuer or any of its Restricted Subsidiaries Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its properties or assets to the Company Issuer or any of its Restricted Subsidiaries.
(b) The restrictions in Section 4.08(a) hereof will not apply to encumbrances or restrictions existing under or by reason of:
(1) agreements governing Existing Indebtedness and the Credit Agreement as in effect on the date of this Indenture Issue Date and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained in the such amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are not in the good faith judgment of an Officer of the Company materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements on the date of this IndentureIssue Date, as determined in good faith by the Issuer;
(2) this Indenture, the Notes and the Note Guarantees;
(3) agreements governing other Indebtedness permitted to be incurred under the provisions of Section 4.09 hereof and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained therein are in the reasonable good faith judgment of an Officer of the Company, either (a) not materially more restrictive, taken as a whole, than those contained in this Indenture, the Notes and the Note Guarantees or the Credit Agreement as in effect on the date of this Indenture or (b) not reasonably likely to have a material adverse effect on Issue Date, as determined in good faith by the ability of the Company to make required payments on the NotesIssuer;
(4) applicable law, rule, regulation regulation, order, approval, license, permit or ordersimilar restriction;
(5) any instrument governing Indebtedness or Capital Stock or other agreement of a Person acquired (including by merger or consolidation), or the assets of which are acquired, by the Company Issuer or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness or Capital Stock or other agreement was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, and any amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings thereof; provided, that the encumbrances and restrictions in any such amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings are, in the reasonable good faith judgment of an Officer of the Company, no more restrictive, taken as a whole, than those in effect on the date of the acquisition; provided further, that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be incurred;
(6) customary non-assignment provisions in Hydrocarbon purchase and sale or exchange agreements or similar operational agreements or in licenses, easements or leases, in each case, entered into in the ordinary course of business;
(7) purchase money obligations for property acquired in the ordinary course of business and Capital Finance Lease Obligations that impose restrictions on the property purchased or leased of the nature described in clause (3) of Section 4.08(a);
(8) any agreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(9) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, in the reasonable good faith judgment of an Officer of the Company, are not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced, as determined in good faith by the Issuer;
(10) Liens permitted to be incurred under the provisions of Section 4.12 that limit the right of the debtor to dispose of the assets subject to such Liens;
(11) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements, shareholders’ agreements, partnership agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment) entered into with the approval of the Company’s Board of DirectorsDirectors of the Issuer or in the ordinary course of business, which limitation is applicable only to the assets or property that are is the subject of such agreements;
(12) encumbrances any agreement or restrictions applicable instrument relating to any property or assets acquired after the Issue Date, so long as such encumbrance or restriction relates only to a Restricted Subsidiary that the property or assets so acquired and is not a Domestic Subsidiaryand was not created in anticipation of such acquisition;
(13) encumbrances or restrictions on cash cash, Cash Equivalents or other deposits or net worth requirements imposed by customers or lessors under contracts or leases entered into in the ordinary course of business;
(14) any Preferred Stock issued by a Restricted Subsidiary of the Issuer; provided that issuance of such Preferred Stock is permitted pursuant to Section 4.09 and the terms of such Preferred Stock do not expressly restrict the ability of a Restricted Subsidiary of the Issuer to pay dividends or make any other distributions on its Equity Interests (other than requirements to pay dividends or liquidation preferences on such Preferred Stock prior to paying any dividends or making any other distributions on such other Equity Interests);
(15) any encumbrance or restriction contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was incurred if (x) either (a) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant in such Indebtedness or agreement or (b) any such encumbrance or restriction will not materially affect the Issuer’s ability to make principal or interest payments on the Notes, as determined in good faith by the Issuer and (y) the encumbrance or restriction is not materially more disadvantageous to the Holders than is customary in comparable financings or agreements, as determined in good faith by the Issuer;
(16) Hedging Obligations permitted from time to time under this Indenture;
(17) encumbrances and restrictions contained in contracts entered into in the ordinary course of business, not relating to any Indebtedness, and that do not, taken as a whole, detract from the value of, or from the ability of the Issuer and its Restricted Subsidiaries to realize the value of, property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer or any Restricted Subsidiary, as determined in good faith by the Issuer; provided that such encumbrances or restrictions will not materially affect the Issuer’s ability to make principal or interest payments on the Notes, as determined in good faith by the Issuer;
(18) customary encumbrances and restrictions contained in agreements of the types described in the definition of “Permitted Business Investments;”; or
(15) agreements governing Hedging Obligations incurred in the ordinary course of business; and
(1619) any encumbrance or restriction with respect to an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Unrestricted SubsidiaryPermitted Investment. In each case set forth above, notwithstanding any stated limitation on the assets or property that may be subject to such encumbrance or restriction, an encumbrance or restriction on a specified asset or property or group or type of assets or property may also apply to all improvements, additions, repairs, attachments or accessions thereto, assets and property affixed or appurtenant thereto, parts, replacements and substitutions therefor, contractual rights relating primarily thereto and all products and proceeds thereof, thereof (including dividends, distributions, interest distributions and increases in respect thereof).
Appears in 3 contracts
Sources: Indenture (California Resources Corp), Indenture (California Resources Corp), Indenture (California Resources Corp)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company Borrower and the Parent Guarantors will not, and will not permit any of its their Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary of New Pyxus Topco to:
(1i) pay dividends or make any other distributions on its Capital Stock to the Company Borrower, any Parent Guarantor or any of its their Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness indebtedness owed to the Company Borrower, any Parent Guarantor or any of its their Restricted Subsidiaries; provided that Subsidiaries (except for waiving or deferring in the priority that any series ordinary course of Preferred Stock of a Restricted Subsidiary has business subrogation and reimbursement rights in receiving dividends, distributions or liquidating distributions before dividends, distributions or liquidating distributions are paid in respect of common stock of such Restricted Subsidiary shall not constitute a restriction on connection with the ability guarantee obligations permitted pursuant to make dividends or distributions on Capital Stock for purposes of this Section 4.086.03);
(2ii) make loans or advances to the Company Borrower, any Parent Guarantor or any of its their Restricted Subsidiaries (it being understood that the subordination of loans or advances made to the Company or any of its Restricted Subsidiaries to other Indebtedness incurred by the Company or any of its Restricted Subsidiaries shall not be deemed a restriction on the ability to make loans or advances)Subsidiaries; or
(3iii) sell, lease or transfer any of its properties or assets to the Company Borrower, any Parent Guarantor or any of its their Restricted Subsidiaries.
(b) The restrictions in Section 4.08(a6.02(a) hereof will not apply to encumbrances or restrictions existing under or by reason of:
(1i) agreements governing Existing Indebtedness Indebtedness, the ABL Credit Agreement, the Term Loan Credit Agreement, and the Credit Agreement First Lien Notes Indenture as in effect on the date of this Indenture hereof and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained in the amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are not in the good faith judgment of an Officer of the Company materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements on the date of this Indenturehereof;
(2ii) this Indenture, the Notes Agreement and the Note Guaranteesother Loan Documents;
(3iii) agreements governing other Indebtedness permitted to be incurred under the provisions of pursuant to Section 4.09 hereof 6.03 and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that (A) the restrictions are ordinary and customary with respect to the type of Indebtedness being incurred and (B) such encumbrances or restrictions contained therein are will not materially affect the Borrower’s ability to make payments of principal or interest on the Loans, as determined at the time such Indebtedness is incurred in the reasonable good faith judgment by the senior management of an Officer of the Company, either (a) not materially more restrictive, taken as a whole, than those contained in this Indenture, the Notes and the Note Guarantees or the Credit Agreement as in effect on the date of this Indenture or (b) not reasonably likely to have a material adverse effect on the ability of the Company to make required payments on the NotesNew Pyxus Topco;
(4iv) applicable law, rule, regulation or order;
(5v) any instrument governing Indebtedness or Capital Stock of a Person acquired by the Company Borrower, any Parent Guarantor or any of its their Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness or Capital Stock was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, and any amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings thereof; provided, that the encumbrances and restrictions in any such amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings are, in the reasonable good faith judgment of an Officer of the Company, no more restrictive, taken as a whole, than those in effect on the date of the acquisition; provided further, that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture Agreement to be incurred;
(6vi) customary non-assignment provisions in Hydrocarbon purchase contracts and sale or exchange agreements or similar operational agreements or in licenses, easements or leases, in each case, licenses entered into in the ordinary course of business;
(7vii) purchase money obligations for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on the property purchased or leased of the nature described in clause (3iii) of Section 4.08(a)6.02(a) hereof;
(8) viii) any agreement for the sale or other disposition of a Restricted Subsidiary of the Borrower or any Parent Guarantor that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(9ix) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, in the reasonable good faith judgment of an Officer of the Company, are not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(10x) Liens permitted to be incurred under the provisions of Section 4.12 6.06 hereof that limit the right of the debtor to dispose of the assets subject to such Liens;
(11xi) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment) entered into with the approval of the CompanyNew Pyxus Topco’s Board of Directors, which limitation is applicable only to the assets that are the subject of such agreements;
(12xii) encumbrances or restrictions applicable only to a Restricted Subsidiary that is not a Domestic Subsidiary;
(13) encumbrances or restrictions on cash or other deposits or net worth imposed by customers or lessors under contracts or leases entered into in the ordinary course of business;
(14) customary encumbrances and restrictions contained in agreements of the types described in the definition of Permitted Business Investments;
(15) agreements governing Hedging Obligations incurred in the ordinary course of business; and
(16xiii) any encumbrance encumbrances or restriction with respect restrictions contained in agreements relating only to an Unrestricted Subsidiary pursuant to one or by reason of an agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Unrestricted Subsidiary. In each case set forth above, notwithstanding any stated limitation on the assets or property that may be subject to such encumbrance or restriction, an encumbrance or restriction on a specified asset or property or group or type of assets or property may also apply to all improvements, additions, repairs, attachments or accessions thereto, assets and property affixed or appurtenant thereto, parts, replacements and substitutions therefor, and all products and proceeds thereof, including dividends, distributions, interest and increases in respect thereofmore Immaterial Subsidiaries.
Appears in 3 contracts
Sources: Amendment and Restatement Agreement (Pyxus International, Inc.), Term Loan Credit Agreement (Pyxus International, Inc.), Term Loan Credit Agreement (Pyxus International, Inc.)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Following the Non-Cash Pay Period, the Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock to the Company or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness indebtedness owed to the Company or any of its Restricted Subsidiaries; provided that the priority that any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends, distributions or liquidating distributions before dividends, distributions or liquidating distributions are paid in respect of common stock of such Restricted Subsidiary shall not constitute a restriction on the ability to make dividends or distributions on Capital Stock for purposes of this Section 4.08;
(2) make loans or advances to the Company or any of its Restricted Subsidiaries (it being understood that the subordination of loans or advances made to the Company or any of its Restricted Subsidiaries to other Indebtedness incurred by the Company or any of its Restricted Subsidiaries shall not be deemed a restriction on the ability to make loans or advances)Subsidiaries; or
(3) sell, lease or transfer any of its properties or assets to the Company or any of its Restricted Subsidiaries.
(b) The restrictions in Section 4.08(a) hereof will not apply to encumbrances or restrictions existing under or by reason of:
(1) agreements governing Existing Indebtedness and the Credit Agreement Facilities as in effect on the date of this Indenture and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained in the amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are not in the good faith judgment of an Officer of the Company materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements on the date of this Indenture;
(2) this Indenture, the Notes and the related Note Guarantees;
(3) agreements governing other Indebtedness permitted to be incurred under the provisions of Section 4.09 hereof and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that (except with respect to Indebtedness incurred pursuant to clause (16) of Section 4.09(b) hereof) the encumbrances or restrictions contained therein are in the reasonable good faith judgment of an Officer of the Company, either (a) not materially more restrictive, taken as a whole, than those contained in this Indenture, the Notes and the Note Guarantees or the Credit Agreement as in effect on the date of this Indenture or (b) not reasonably likely to have a material adverse effect on the ability of the Company to make required payments on the NotesGuarantees;
(4) applicable law, rule, regulation or order;
(5) any instrument governing Indebtedness or Capital Stock of a Person acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness or Capital Stock was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, and any amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings thereof; provided, that the encumbrances and restrictions in any such amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings are, in the reasonable good faith judgment of an Officer of the Company, no more restrictive, taken as a whole, than those in effect on the date of the acquisition; provided further, that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be incurred;
(6) customary non-assignment provisions in Hydrocarbon purchase contracts and sale or exchange agreements or similar operational agreements or in licenses, easements or leases, in each case, licenses entered into in the ordinary course of business;
(7) purchase money obligations for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on the property purchased or leased of the nature described in clause (34) of Section 4.08(a)4.09(b) hereof;
(8) any agreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its such sale or other disposition;
(9) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, in the reasonable good faith judgment of an Officer of the Company, are not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(10) Liens permitted to be incurred under the provisions of Section 4.12 hereof that limit the right of the debtor to dispose of the assets subject to such Liens;
(11) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment) entered into with the approval of the Company’s Board of Directors, which limitation is applicable only to the assets that are the subject of such agreements;; and
(12) encumbrances or restrictions applicable only to a Restricted Subsidiary that is not a Domestic Subsidiary;
(13) encumbrances or restrictions on cash or other deposits or net worth imposed by customers or lessors under contracts or leases entered into in the ordinary course of business;
(14) customary encumbrances and restrictions contained in agreements of the types described in the definition of Permitted Business Investments;
(15) agreements governing Hedging Obligations incurred in the ordinary course of business; and
(16) any encumbrance or restriction with respect to an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Unrestricted Subsidiary. In each case set forth above, notwithstanding any stated limitation on the assets or property that may be subject to such encumbrance or restriction, an encumbrance or restriction on a specified asset or property or group or type of assets or property may also apply to all improvements, additions, repairs, attachments or accessions thereto, assets and property affixed or appurtenant thereto, parts, replacements and substitutions therefor, and all products and proceeds thereof, including dividends, distributions, interest and increases in respect thereof.
Appears in 3 contracts
Sources: Indenture (Nuverra Environmental Solutions, Inc.), Indenture (Nuverra Environmental Solutions, Inc.), Indenture (Nuverra Environmental Solutions, Inc.)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1i) pay dividends or make any other distributions on its Capital Stock to the Company or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Company or any of its Restricted Subsidiaries; provided that the priority that any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends, distributions or liquidating distributions before dividends, distributions or liquidating distributions are paid in respect of common stock of such Restricted Subsidiary shall not constitute a restriction on the ability to make dividends or distributions on Capital Stock for purposes of this Section 4.08;
(2ii) make loans or advances to the Company or any of its Restricted Subsidiaries (it being understood that the subordination of loans or advances made to the Company or any of its Restricted Subsidiaries to other Indebtedness incurred by the Company or any of its Restricted Subsidiaries shall not be deemed a restriction on the ability to make loans or advances); or
(3iii) sell, lease or transfer any of its properties or assets to the Company or any of its Restricted Subsidiaries.
(b) The restrictions in Section 4.08(a) hereof will not apply to encumbrances or restrictions existing under or by reason of:
(1i) agreements governing Existing Indebtedness Indebtedness, the Second Lien Notes and the Credit Agreement Facilities as in effect on the date of this Indenture and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained in the amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are not not, in the good faith judgment of an Officer of the Company Company, materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements on the date of this Indenture;
(2ii) this Indenture, the Notes and the Note Guarantees;
(3iii) agreements governing other Indebtedness permitted to be incurred under the provisions of Section 4.09 hereof and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained therein are not, in the reasonable good faith judgment of an Officer of the Company, either (a) not materially more restrictive, taken as a whole, than those contained in this Indenture, the Notes and the Note Guarantees or the Credit Agreement as in effect on the date of this Indenture or (b) not reasonably likely to have a material adverse effect on the ability of the Company to make required payments on the NotesIndenture;
(4iv) applicable law, rule, regulation or order;
(5v) any instrument governing Indebtedness or Capital Stock of a Person acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness or Capital Stock was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, and any amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings thereof; provided, provided that the encumbrances and restrictions in any such amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings are, in the reasonable good faith judgment of an Officer of the Company, no more restrictive, taken as a whole, than those in effect on the date of the acquisition; provided provided, further, that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be incurred;
(6vi) customary non-assignment provisions in Hydrocarbon purchase and sale or exchange agreements or similar operational agreements or in licenses, easements or leases, in each case, entered into in the ordinary course of business;
(7vii) purchase money obligations for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on the property purchased or leased of the nature described in clause (3iii) of Section 4.08(a)) hereof;
(8) viii) any agreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(9ix) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, in the reasonable good faith judgment of an Officer of the Company, not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(10x) Liens permitted to be incurred under the provisions of Section 4.12 hereof that limit the right of the debtor to dispose of the assets subject to such Liens;
(11xi) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment) entered into with the approval of the Company’s Board of Directors, which limitation is applicable only to the assets that are the subject of such agreements;
(12xii) encumbrances or restrictions applicable only to a Restricted Subsidiary that is not a Domestic Subsidiary;
(13xiii) encumbrances or restrictions on cash or other deposits or net worth imposed by customers or lessors under contracts or leases entered into in the ordinary course of business;; and
(14xiv) customary encumbrances and restrictions contained in agreements of the types described in the definition of Permitted Business Investments;
(15) agreements governing Hedging Obligations incurred in the ordinary course of business; and
(16) any encumbrance or restriction with respect to an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Unrestricted Subsidiary. In each case set forth above, notwithstanding any stated limitation on the assets or property that may be subject to such encumbrance or restriction, an encumbrance or restriction on a specified asset or property or group or type of assets or property may also apply to all improvements, additions, repairs, attachments or accessions thereto, assets and property affixed or appurtenant thereto, parts, replacements and substitutions therefor, and all products and proceeds thereof, including dividends, distributions, interest and increases in respect thereof.
Appears in 2 contracts
Sources: Indenture (Callon Petroleum Co), Indenture (Callon Petroleum Co)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Subject to the provisions of Section 4.08(b) below, the Company will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, directly create or indirectly, create otherwise cause or permit to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock Equity Interests to the Company or any of its other Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or Subsidiary;
(2) pay any Indebtedness Debt or other liabilities owed to the Company or any of its other Restricted Subsidiaries; provided that the priority that any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends, distributions or liquidating distributions before dividends, distributions or liquidating distributions are paid in respect of common stock of such Restricted Subsidiary shall not constitute a restriction on the ability to make dividends or distributions on Capital Stock for purposes of this Section 4.08Subsidiary;
(23) make loans or advances to the Company or any of its other Restricted Subsidiaries (it being understood that the subordination of loans or advances made to the Company or any of its Restricted Subsidiaries to other Indebtedness incurred by the Company or any of its Restricted Subsidiaries shall not be deemed a restriction on the ability to make loans or advances)Subsidiary; or
(34) sell, lease or transfer any of its properties property or assets to the Company or any of its other Restricted SubsidiariesSubsidiary.
(b) The restrictions in Section 4.08(a) hereof will not apply to any encumbrances or restrictions existing under or by reason ofrestrictions:
(1) agreements governing Existing Indebtedness and the Credit Agreement Debt as in effect on the date of this Indenture Issue Date, including pursuant to the Existing Credit Facility or the LC Agreement and the other documents relating to the Existing Credit Facility or the LC Agreement, and any amendments, modifications, restatements, modificationsextensions, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or and restrictions contained in the amendmentsamendment, restatementsmodification, modificationsrestatement, renewalsextension, supplementsrenewal, refundings, replacements replacement or refinancings are not in the good faith judgment of an Officer of the Company materially more restrictiverefinancing are, taken as a whole, with no less favorable in any material respect to such dividend and other payment the Holders than the encumbrances or restrictions than those contained in those agreements on the date of this Indenturebeing amended, modified, restated, extended, renewed, replaced or refinanced;
(2) existing pursuant to this Indenture, the Notes and Notes, the Note GuaranteesGuarantee or the Security Documents;
(3) agreements governing other Indebtedness permitted to be incurred existing under the provisions or by reason of Section 4.09 hereof and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained therein are in the reasonable good faith judgment of an Officer of the Company, either (a) not materially more restrictive, taken as a whole, than those contained in this Indenture, the Notes and the Note Guarantees or the Credit Agreement as in effect on the date of this Indenture or (b) not reasonably likely to have a material adverse effect on the ability of the Company to make required payments on the Notes;
(4) applicable law, rule, regulation or order;
(54) existing under any agreements or other instruments of, or with respect to:
(A) any instrument governing Indebtedness or Capital Stock of a Person acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness or Capital Stock was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the any Person, so acquiredat the time the Person is acquired by the Company or any Restricted Subsidiary, or
(B) any Unrestricted Subsidiary at the time it is designated or is deemed to become a Restricted Subsidiary; which encumbrances or restrictions (x) are not applicable to any other Person or the property or assets of any other Person and (y) were not put in place in anticipation of such event and any amendments, restatements, modifications, renewalsrestatements, extensions, supplements, increases, refundingsrenewals, replacements or refinancings thereof; providedof any of the foregoing, provided that the encumbrances and restrictions in any such amendmentsthe amendment, restatementsmodification, modificationsrestatement, renewalsextension, extensionsrenewal, supplements, increases, refundings, replacements replacement or refinancings refinancing are, in the reasonable good faith judgment of an Officer of the Company, no more restrictive, taken as a whole, no less favorable in any material respect to the Holders than those in effect on the date encumbrances or restrictions being amended, modified, restated, extended, renewed, replaced or refinanced;
(5) of the acquisition; provided further, that, type described in Section 4.08(a)(4) arising or agreed to (i) in the case ordinary course of Indebtednessbusiness that restrict in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license, conveyance or similar contract, including with respect to intellectual property, (ii) that restrict in a customary manner, pursuant to provisions in partnership agreements, limited liability company organizational governance documents, joint venture agreements and other similar agreements, the transfer of ownership interests in, or assets of, such Indebtedness was permitted partnership, limited liability company, Joint Venture or similar Person or (iii) by virtue of any Lien on, or agreement to transfer, option or similar right with respect to any property or assets of, the terms of this Indenture to be incurredCompany or any Restricted Subsidiary;
(6) customary non-assignment provisions in Hydrocarbon purchase with respect to a Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or exchange disposition of the Capital Stock of, or property and assets of, the Restricted Subsidiary pending closing of such sale or disposition that is permitted by this Indenture;
(7) consisting of customary restrictions pursuant to any Permitted Receivables Financing;
(8) existing pursuant to Permitted Refinancing Debt; provided that the encumbrances and restrictions contained in the agreements governing such Permitted Refinancing Debt are, taken as a whole, no less favorable in any material respect to the Holders than those contained in the agreements governing the Debt being refinanced;
(9) consisting of restrictions on cash or similar operational agreements other deposits or net worth imposed by lessors, customers, suppliers or required by insurance surety bonding companies or in licenses, easements connection with any reclamation activity of the Company or leasesa Restricted Subsidiary, in each case, entered into in the ordinary course of business;
(710) existing pursuant to purchase money obligations for property acquired in the ordinary course of business and Capital Lease Obligations Finance Leases or operating leases or Mining Leases that impose encumbrances or restrictions discussed in Section 4.08(a)(4) on the property purchased so acquired or leased of the nature described in clause (3) of Section 4.08(a)covered thereby;
(8) 11) existing pursuant to any agreement or instrument relating to any Debt permitted to be Incurred by a Foreign Subsidiary subsequent to the Issue Date pursuant to Section 4.09 hereof, which encumbrances or restrictions are customary for a financing or agreement of such type (as determined in good faith by the sale Company), and the Company determines in good faith that such encumbrances and restrictions will not materially affect the Company’s ability to make principal or other disposition of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other dispositioninterest payments on the Notes as and when they become due;
(912) Permitted Refinancing Indebtedness; provided that existing pursuant to customary provisions in joint venture, operating or similar agreements, asset sale agreements and stock sale agreements required in connection with the entering into of such transaction;
(13) existing pursuant to any agreement or instrument relating to any Debt permitted to be Incurred subsequent to the Issue Date by Section 4.09 hereof if such encumbrances and restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, in the reasonable good faith judgment of an Officer of the Company, not materially more restrictive, taken as a whole, no less favorable in any material respect to the Holders than those contained is customary in comparable financings (as determined in good faith by the agreements governing Company), and the Indebtedness being refinanced;Company determines in good faith that such encumbrances and restrictions will not materially affect the Company’s ability to make principal or interest payments on the Notes as and when they become due; and
(1014) Liens existing under or by reason of any Debt secured by a Lien permitted to be incurred under the provisions of Incurred pursuant to Section 4.09 and Section 4.12 hereof that limit the right of the debtor Company or any Restricted Subsidiary to dispose of the assets subject to securing such Liens;
(11) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment) entered into with the approval of the Company’s Board of Directors, which limitation is applicable only to the assets that are the subject of such agreements;
(12) encumbrances or restrictions applicable only to a Restricted Subsidiary that is not a Domestic Subsidiary;
(13) encumbrances or restrictions on cash or other deposits or net worth imposed by customers or lessors under contracts or leases entered into in the ordinary course of business;
(14) customary encumbrances and restrictions contained in agreements of the types described in the definition of Permitted Business Investments;
(15) agreements governing Hedging Obligations incurred in the ordinary course of business; and
(16) any encumbrance or restriction with respect to an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Unrestricted Subsidiary. In each case set forth above, notwithstanding any stated limitation on the assets or property that may be subject to such encumbrance or restriction, an encumbrance or restriction on a specified asset or property or group or type of assets or property may also apply to all improvements, additions, repairs, attachments or accessions thereto, assets and property affixed or appurtenant thereto, parts, replacements and substitutions therefor, and all products and proceeds thereof, including dividends, distributions, interest and increases in respect thereofDebt.
Appears in 2 contracts
Sources: First Supplemental Indenture (Peabody Energy Corp), Transaction Support Agreement (Peabody Energy Corp)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock to the Company or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness indebtedness owed to the Company or any of its Restricted Subsidiaries; provided that the priority that any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends, distributions or liquidating distributions before dividends, distributions or liquidating distributions are paid in respect of common stock of such Restricted Subsidiary shall not constitute a restriction on the ability to make dividends or distributions on Capital Stock for purposes of this Section 4.08;
(2) make loans or advances to the Company or any of its Restricted Subsidiaries (it being understood that the subordination of loans or advances made to the Company or any of its Restricted Subsidiaries to other Indebtedness incurred by the Company or any of its Restricted Subsidiaries shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its properties or assets to the Company or any of its Restricted Subsidiaries.
(b) The restrictions in Section 4.08(a) hereof will not apply to encumbrances or restrictions existing under or by reason of:
(1) agreements governing Existing Indebtedness and the Credit Agreement as in effect on the date of this Indenture and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained in the amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are not in the good faith judgment of an Officer of the Company materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements on the date of this Indenture;
(2) this Indenture, the Notes and the Note Guarantees;
(3) agreements governing other Indebtedness permitted to be incurred under the provisions of Section 4.09 hereof and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained therein are not, in the reasonable good faith judgment of an the Chief Executive Officer and the Chief Financial Officer of the Company, either (a) not materially more restrictive, taken as a whole, than those contained in this Indenture, the Notes and the Note Guarantees or the Credit Agreement as in effect on the date of this Indenture or (b) not reasonably likely to have a material adverse effect on the ability of the Company to make required payments on the Notes;Indenture
(4) applicable law, rule, regulation or order;
(5) any instrument governing Indebtedness or Capital Stock of a Person acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness or Capital Stock was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, and any amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings thereof; provided, that the encumbrances and restrictions in any such amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings are, in the reasonable good faith judgment of an the Chief Executive Officer and Chief Financial Officer of the Company, no more restrictive, taken as a whole, than those in effect on the date of the acquisition; provided further, that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be incurred;
(6) customary non-assignment provisions in Hydrocarbon purchase and sale or exchange agreements or similar operational agreements or in licenses, easements or leases, in each case, entered into in the ordinary course of business;
(7) purchase money obligations for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on the property purchased or leased of the nature described in clause (3) of Section 4.08(a);
(8) any agreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(9) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, in the reasonable good faith judgment of an the Chief Executive Officer and Chief Financial Officer of the Company, not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(10) Liens permitted to be incurred under the provisions of Section 4.12 that limit the right of the debtor to dispose of the assets subject to such Liens;
(11) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment) entered into with the approval of the Company’s Board of Directors, which limitation is applicable only to the assets that are the subject of such agreements;
(12) encumbrances or restrictions applicable only to a Restricted Subsidiary that is not a Domestic Subsidiary;
(13) encumbrances or restrictions on cash or other deposits or net worth imposed by customers or lessors under contracts or leases entered into in the ordinary course of business;
(14) customary encumbrances and restrictions contained in agreements of the types described in the definition of “Permitted Business Investments;”
(15) agreements governing Hedging Obligations incurred in the ordinary course of business; and
(16) any encumbrance or restriction with respect to an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Unrestricted Subsidiary. In each case set forth above, notwithstanding any stated limitation on the assets or property that may be subject to such encumbrance or restriction, an encumbrance or restriction on a specified asset or property or group or type of assets or property may also apply to all improvements, additions, repairs, attachments or accessions thereto, assets and property affixed or appurtenant thereto, parts, replacements and substitutions therefor, and all products and proceeds thereof, including dividends, distributions, interest and increases in respect thereof.
Appears in 2 contracts
Sources: Indenture (Jones Energy, Inc.), Indenture (Jones Energy, Inc.)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1i) pay dividends or make any other distributions on its Capital Stock to the Company or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness indebtedness owed to the Company or any of its Restricted Subsidiaries; provided that the priority that any series of Preferred Stock preferred stock of a Restricted Subsidiary has in receiving dividends, distributions or liquidating distributions before dividends, distributions or liquidating distributions are paid in respect of common stock Common Stock of such Restricted Subsidiary shall not constitute a restriction on the ability to make dividends or distributions on Capital Stock for purposes of this Section 4.08;
(2ii) make loans or advances to the Company or any of its Restricted Subsidiaries (it being understood that the subordination of loans or advances made to the Company or any of its Restricted Subsidiaries to other Indebtedness incurred by the Company or any of its Restricted Subsidiaries shall not be deemed a restriction on the ability to make loans or advances); or
(3iii) sell, lease or transfer any of its properties or assets to the Company or any of its Restricted Subsidiaries.
(b) The restrictions in Section 4.08(a) hereof will not apply to encumbrances or restrictions existing under or by reason of:
(1i) agreements governing Existing Indebtedness and the Credit Agreement Facilities as in effect on the date of this Indenture and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained in the amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are not in the good faith judgment of an Officer of the Company materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements on the date of this Indenture;
(2ii) this Indenture, the Notes and Notes, the Note Guarantees, and the Security Documents;
(3iii) agreements governing other Indebtedness permitted to be incurred by the Company or any Guarantor under the provisions of Section 4.09 hereof and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained therein are not, in the reasonable good faith judgment of an the Chief Executive Officer and the Chief Financial Officer of the Company, either (a) not materially more restrictive, taken as a whole, than those contained in this Indenture, the Notes and the Note Guarantees or the Credit Agreement as in effect on the date of this Indenture or (b) not reasonably likely to have a material adverse effect on the ability of the Company to make required payments on the NotesGuarantees;
(4iv) applicable law, rule, regulation or order;
(5v) any instrument governing Indebtedness or Capital Stock of a Person acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness or Capital Stock was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets or Subsidiaries of the Person, so acquiredacquired (plus improvements and accessions to, such property or proceeds or distributions thereof) and any amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings thereof; provided, provided that the encumbrances and restrictions in any such amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings are, in the reasonable good faith judgment of an the Chief Executive Officer and Chief Financial Officer of the Company, no more restrictive, taken as a whole, than those in effect on the date of the acquisition; provided provided, further, that, that in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be incurred;
(6vi) customary non-assignment provisions in Hydrocarbon purchase contracts and sale or exchange agreements or similar operational agreements or in licenses, easements or leases, in each case, licenses entered into in the ordinary course of business;
(7vii) purchase money obligations and mortgage financings for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on the property purchased or leased of the nature described in clause (3iii) of Section 4.08(a)) hereof;
(8) viii) any agreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(9ix) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, in the reasonable good faith judgment of an Officer of the Company, are not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(10x) Liens permitted to be incurred under the provisions of Section 4.12 hereof that limit the right of the debtor to dispose of the assets subject to such Liens;
(11xi) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment) entered into with the approval of the Company’s Board of Directors, which limitation is applicable only to the assets that are the subject of such agreements;
(12xii) encumbrances or restrictions applicable only to a Restricted Subsidiary that is not a Domestic Subsidiary;
(13) encumbrances or restrictions on cash or other deposits or net worth imposed by customers or lessors under contracts or leases entered into in the ordinary course of business;
(14xiii) customary encumbrances any agreement or instrument relating to any property or assets acquired after the date of this Indenture, so long as such encumbrance or restriction relates only to the property or assets so acquired (plus improvements and restrictions contained accessions to, such property or proceeds or distributions thereof) and is not and was not created in agreements anticipation of the types described in the definition of Permitted Business Investments;
(15) agreements governing Hedging Obligations incurred in the ordinary course of businesssuch acquisition; and
(16xiv) existing under, by reason of or with respect to provisions with respect to any Indebtedness incurred by a Restricted Subsidiary in compliance with Section 4.09 hereof, or any agreement pursuant to which such Indebtedness is issued, if the encumbrance or restriction with respect is not materially more disadvantageous to an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation Holders of the Unrestricted Subsidiary becoming a Restricted Subsidiary Notes than is customary in comparable financings (as determined by the Board of Directors of the Company) and the Board of Directors of the Company determines that any such encumbrance or restriction does will not extend materially affect the Company’s ability to any assets pay interest or property of the Company or any other Restricted Subsidiary other than the assets and property of such Unrestricted Subsidiary. In each case set forth above, notwithstanding any stated limitation principal on the assets or property that may be subject to such encumbrance or restriction, an encumbrance or restriction on a specified asset or property or group or type of assets or property may also apply to all improvements, additions, repairs, attachments or accessions thereto, assets and property affixed or appurtenant thereto, parts, replacements and substitutions therefor, and all products and proceeds thereof, including dividends, distributions, interest and increases in respect thereofNotes.
Appears in 2 contracts
Sources: Indenture (Ion Geophysical Corp), Indenture (I/O Marine Systems, Inc.)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company Issuer and Wind will not, and Wind will not permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of (1) Wind to make payments to, or make loans or advances to, the Issuer or (2) any Restricted Subsidiary of Wind to:
(1i) pay dividends or make any other distributions on its Capital Stock to the Company Wind or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Company Wind or any of its Restricted Subsidiaries;
(ii) make loans or advances to Wind or any of its Restricted Subsidiaries; provided that the priority that any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends, distributions or liquidating distributions before dividends, distributions or liquidating distributions are paid in respect of common stock of such Restricted Subsidiary shall not constitute a restriction on the ability to make dividends or distributions on Capital Stock for purposes of this Section 4.08;
(2) make loans or advances to the Company or any of its Restricted Subsidiaries (it being understood that the subordination of loans or advances made to the Company or any of its Restricted Subsidiaries to other Indebtedness incurred by the Company or any of its Restricted Subsidiaries shall not be deemed a restriction on the ability to make loans or advances); or
(3iii) sell, lease or transfer any of its properties or assets to the Company Wind or any of its Restricted Subsidiaries.
(b) The However, the preceding restrictions in Section 4.08(a) hereof will not apply to encumbrances or restrictions existing under or by reason ofof or with respect to:
(1i) agreements and instruments (including agreements or instruments governing Existing Indebtedness and Credit Facilities (including the Credit Agreement Priority Agreement)) as in effect on the date of this Indenture and any amendments, extensions, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained in the amendments, extensions, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are not in the good faith judgment of an Officer of the Company materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those such agreements and instruments on the date of this Indenture;
(2ii) this IndentureIndenture and the Notes, the Notes Note Guarantees and the Note Guarantees;
(3) agreements governing other Indebtedness permitted to be incurred under the provisions of Section 4.09 hereof Security Documents and any amendments, extensions, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances amendments, extensions, restatements, modifications, renewals, supplements, refundings, replacements or restrictions contained therein refinancings are in the reasonable good faith judgment of an Officer of the Company, either (a) not materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in this Indenture, the Notes such agreements and the Note Guarantees or the Credit Agreement as in effect instruments on the date of this Indenture or (b) not reasonably likely to have a material adverse effect on the ability of the Company to make required payments on the NotesIndenture;
(4iii) applicable law, rule, regulation regulation, or orderorder or governmental license, permit or concession with respect to the operation of a Permitted Business;
(5iv) any agreement or instrument (including agreement and instruments governing Indebtedness Indebtedness) or Capital Stock of a Person or assets acquired by the Company Wind or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness or Capital Stock was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, acquired and any amendments, extensions, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings thereofof those agreements; provided, provided that the encumbrances and restrictions in any such amendments, extensions, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings are, in the reasonable good faith judgment of an Officer of the Company, no are not materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in effect the corresponding agreement on the date of the such acquisition; provided further, further that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be incurred;
(6v) customary non-assignment provisions in Hydrocarbon purchase and sale or exchange agreements or similar operational agreements or in licenses, easements or leases, in each case, contracts and licenses entered into by Wind and its Restricted Subsidiaries in the ordinary course of business;
(7vi) purchase money obligations for property acquired in the ordinary course of business and business, Capital Lease Obligations and mortgage financings that impose restrictions on the property purchased or leased of the nature described in clause (3) of Section 4.08(a4.08(a)(iii);
(8) vii) any agreement for the sale or other disposition of Equity Interests or property or assets of a Restricted Subsidiary of Wind (including by way of merger, consolidation, amalgamation or combination) that restricts distributions by that Restricted Subsidiary the disposition of such Equity Interests, property or assets pending its the sale or other disposition;
(9viii) any agreement or instrument relating to Indebtedness permitted to be incurred after the Issue Date under Section 4.09 if the restriction and encumbrances contained in the relevant agreements governing such Indebtedness are (a) either (1) no more restrictive or (2) not materially less favorable to the Holders of the Notes, taken as a whole and determined in good faith by the Board of Directors of Wind, than the dividends and other payment restrictions contained in the Credit Agreement and the Priority Agreement, in each case, as in effect on the Issue Date, and (b) either (1) the final Stated Maturity of the Indebtedness is prior to the final Stated Maturity of the Notes or (2) such Indebtedness permits principal payments to be made to the Issuer to fund the repayment of the Notes at final Stated Maturity;
(ix) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, in the reasonable good faith judgment of an Officer of the Company, are not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(10x) Liens permitted to be incurred under the provisions of Section 4.12 that limit the right of the debtor to dispose of the assets subject to such Liens;
(11xi) provisions limiting the disposition or distribution of assets assets, property or property Equity Interests in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment) entered into with the approval of the CompanyWind’s Board of Directors, which limitation is applicable only to the assets assets, property or Equity Interests that are the subject of such agreements;
(12xii) encumbrances or restrictions applicable only to a Restricted Subsidiary that is not a Domestic Subsidiary;
(13) encumbrances or restrictions on cash or other deposits or net worth imposed by customers or lessors under contracts or leases entered into in the ordinary course of business;
(14) customary encumbrances by Wind and restrictions contained in agreements of the types described in the definition of Permitted Business Investments;
(15) agreements governing Hedging Obligations incurred its Restricted Subsidiaries in the ordinary course of business; and
(16xiii) any encumbrance or restriction restrictions effected in connection with respect to an Unrestricted Subsidiary pursuant to or by reason a Qualified Receivables Financing that, in the good faith determination of an agreement that Officer or the Unrestricted Subsidiary is a party Board of Directors of Wind, are necessary or advisable to or entered into before the date on which effect such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Unrestricted Subsidiary. In each case set forth above, notwithstanding any stated limitation on the assets or property that may be subject to such encumbrance or restriction, an encumbrance or restriction on a specified asset or property or group or type of assets or property may also apply to all improvements, additions, repairs, attachments or accessions thereto, assets and property affixed or appurtenant thereto, parts, replacements and substitutions therefor, and all products and proceeds thereof, including dividends, distributions, interest and increases in respect thereofQualified Receivables Financing.
Appears in 2 contracts
Sources: Indenture (VimpelCom Ltd.), Indenture (VimpelCom Ltd.)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company will not, and will not cause or permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or permit otherwise cause to exist come into existence or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions distribution on its Capital Stock to the Company or any Restricted Subsidiary (it being understood that the priority of its Restricted Subsidiaries, any Preferred Stock in receiving dividends or with respect liquidating distributions prior to any other interest dividends or participation in, liquidating distributions being paid on common stock shall not be deemed a restriction on the ability to pay dividends or measured by, its profits, or make distributions on Capital Stock),
(2) pay any Indebtedness owed to the Company or any of its other Restricted Subsidiaries; provided Subsidiary (it being understood that the priority that subordination of Indebtedness owed to the Company or any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends, distributions to other Indebtedness owed by the Company or liquidating distributions before dividends, distributions or liquidating distributions are paid in respect of common stock of such any Restricted Subsidiary shall not constitute be deemed a restriction on the ability to make dividends or distributions on Capital Stock for purposes of this Section 4.08;pay such Indebtedness),
(23) make loans or advances to the Company or any of its other Restricted Subsidiaries Subsidiary (it being understood that the subordination of loans or advances made to by the Company or any of its Restricted Subsidiaries Subsidiary to other Indebtedness incurred by the Company or any of its Restricted Subsidiaries Subsidiary shall not be deemed a restriction on the ability to make loans or advances); , or
(34) sell, lease or transfer any of its properties or assets to the Company or any of its other Restricted SubsidiariesSubsidiary.
(b) The restrictions in However, Section 4.08(a4.13(a) hereof will not apply to encumbrances prohibit any encumbrance or restrictions restriction created, existing or becoming effective under or by reason of:
(1) agreements any agreement (including the Senior Credit Agreement, the indentures governing the Existing Indebtedness Senior Notes and the Credit Agreement as this Indenture) in effect on the date of this Indenture and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained in the amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are not in the good faith judgment of an Officer of the Company materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements on the date of this IndentureIssue Date;
(2) this Indentureany agreement or instrument with respect to a Restricted Subsidiary that is not a Restricted Subsidiary on the Issue Date, in existence at the time such Person becomes a Restricted Subsidiary and, other than in connection with Permitted Acquisition Indebtedness, that was not incurred in contemplation of the acquisition, merger or consolidation transaction; provided that such encumbrances and restrictions are not applicable to, or to the properties or assets of, the Notes and the Note GuaranteesCompany or any Restricted Subsidiary other than such Subsidiary which is becoming a Restricted Subsidiary;
(3) agreements any agreement or instrument governing any Acquired Debt or other Indebtedness permitted to be incurred under the provisions agreement of Section 4.09 hereof and any amendmentsentity merged into or consolidated with, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained therein are in the reasonable good faith judgment of an Officer of the Company, either (a) not materially more restrictive, taken as a whole, than those contained in this Indenture, the Notes and the Note Guarantees or the Credit Agreement as in effect on the date assets of this Indenture or (b) not reasonably likely to have a material adverse effect on the ability of the Company to make required payments on the Notes;
(4) applicable lawwhich are acquired by, rule, regulation or order;
(5) any instrument governing Indebtedness or Capital Stock of a Person acquired by the Company or any of its Restricted Subsidiaries Subsidiary, so long as in effect at the time of such acquisition (except to the extent such Indebtedness encumbrance or Capital Stock was incurred restriction, other than in connection with or Permitted Acquisition Indebtedness, was not incurred in contemplation of such the acquisition), which encumbrance merger or restriction consolidation transaction, and is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets or subsidiaries of the Person, so acquired, and so long as the agreement containing such restriction does not violate any amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings thereof; provided, that the encumbrances and restrictions in any such amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings are, in the reasonable good faith judgment of an Officer of the Company, no more restrictive, taken as a whole, than those in effect on the date of the acquisition; provided further, that, in the case of Indebtedness, such Indebtedness was permitted by the terms other provision of this Indenture to be incurredIndenture;
(64) customary non-assignment provisions in Hydrocarbon purchase and sale any applicable law or exchange agreements or similar operational agreements or in licenses, easements or leases, in each case, entered into in the ordinary course any requirement of businessany regulatory body;
(75) purchase money obligations for property acquired in the ordinary course of business customary restrictions and Capital Lease Obligations that impose restrictions on the property purchased or leased of the nature described in clause (3) of Section 4.08(a);
(8) any agreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(9) Permitted Refinancing Indebtedness; provided that the restrictions conditions contained in the security documents evidencing any Liens securing obligations or Indebtedness or agreements governing relating to Finance Lease Obligations (provided that such Permitted Refinancing Indebtedness are, in the reasonable good faith judgment of an Officer of the Company, not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(10) Liens are otherwise permitted to be incurred under the provisions of Section 4.12 4.10 and such restrictions and conditions are not created for the purpose of avoiding the restrictions imposed by this Section 4.13) that limit the right of the debtor or lessee to dispose of the assets subject to such Liens;
(116) provisions limiting restricting subletting or assignment of any lease governing a leasehold interest (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties) of the disposition Company or distribution any Restricted Subsidiary, or restrictions in licenses (including licenses of intellectual property) relating to the property covered thereby, or other encumbrances or restrictions in agreements or instruments relating to specific assets or property that restrict generally the transfers of such assets or property; provided that such encumbrances or restrictions do not, in the good faith judgment of the Company, materially impact the ability of the Company to make payments on the Notes when due as required by the terms of this Indenture;
(7) agreements with respect to asset sales, including the sale or other disposition of all or substantially all the Capital Stock of a Restricted Subsidiary, permitted to be made under the provisions of Section 4.11 that limit the transfer of such assets or assets of such Restricted Subsidiary (or distribution on such Capital Stock) pending the closing of such sale;
(8) shareholders’, partnership, joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a the ordinary course of business; provided that such encumbrances or restrictions do not apply to any Restricted Investment) entered into with Subsidiaries other than the approval of the Company’s Board of Directorsapplicable company, which limitation is applicable only to the assets that are the subject of such agreementspartnership, joint venture or other entity;
(129) encumbrances or restrictions applicable only to a Restricted Subsidiary that is not a Domestic Subsidiary;
(13) encumbrances or restrictions on cash cash, Cash Equivalents or other deposits deposits, or net worth requirements or similar requirements, imposed by suppliers, landlords or customers or lessors under contracts or leases entered into in the ordinary course of business;
(1410) customary any Credit Facility or agreement governing Indebtedness of the Company or any Restricted Subsidiary permitted to be incurred under the provisions of Section 4.07; provided that either (a) such encumbrances and or restrictions are not materially more restrictive, taken as a whole, as determined by the Company in good faith, than those contained in agreements the Senior Credit Agreement or in the indentures governing the Existing Senior Notes or in this Indenture as in effect on the Issue Date, or (b) such encumbrances or restrictions do not, in the good faith judgment of the types described in Company, materially impact the definition ability of Permitted Business Investmentsthe Company to make payments on the Notes when due as required by the terms of this Indenture;
(1511) agreements governing Hedging Obligations incurred restrictions of the nature described in clause (4) of Section 4.13(a) by reason of customary non-assignment provisions in Hydrocarbon purchase or sale or exchange contracts, agreements, licenses and leases entered into in the ordinary course of business; and
(16) any encumbrance or restriction with respect to an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Unrestricted Subsidiary. In each case set forth above, notwithstanding any stated limitation on the assets or property that may be subject to such encumbrance or restriction, an encumbrance or restriction on a specified asset or property or group or type of assets or property may also apply to all improvements, additions, repairs, attachments or accessions thereto, assets and property affixed or appurtenant thereto, parts, replacements and substitutions therefor, and all products and proceeds thereof, including dividends, distributions, interest and increases in respect thereof.;
Appears in 2 contracts
Sources: Indenture (Vital Energy, Inc.), Indenture (Vital Energy, Inc.)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock to the Company or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Company or any of its Restricted Subsidiaries; provided that the priority that any series of Preferred Stock preferred stock of a Restricted Subsidiary has in receiving dividends, distributions dividends or liquidating or other distributions before dividends, distributions dividends or liquidating or other distributions are paid in respect of common stock of such Restricted Subsidiary shall not constitute a restriction on the ability to make dividends or distributions on Capital Stock for purposes of this Section 4.084.08(a);
(2) make loans or advances to the Company or any of its Restricted Subsidiaries (it being understood that the subordination of loans or advances made to the Company or any of its such Restricted Subsidiaries Subsidiary to other Indebtedness incurred by the Company or any of its such Restricted Subsidiaries Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its properties or assets to the Company or any of its Restricted Subsidiaries.
(b) The restrictions in Section 4.08(a) hereof will not apply to encumbrances or restrictions existing under or by reason of:
(1) agreements governing any Credit Facility (including the ABL Credit Agreement and the Term Loan Credit Agreement), any Existing Indebtedness and the Credit Agreement or any other agreements or instruments, in each case as in effect on the date of this Indenture Issue Date and any amendments, restatements, modifications, renewals, extensions, increases, supplements, refundings, replacements or refinancings of those agreementsagreements or the Indebtedness to which they relate; provided that the encumbrances or restrictions contained in the amendments, restatements, modifications, renewals, extensions, increases, supplements, refundings, replacements or refinancings are not are, in the reasonable good faith judgment of an the Chief Financial Officer of the Company General Partner, not materially more restrictive, taken as a whole, with respect to such dividend dividend, distribution and other payment restrictions than those contained in those agreements on the date of this IndentureIssue Date;
(2) this Indenture, the Notes and the Note Guarantees;
(3) agreements governing other Indebtedness permitted to be incurred under the provisions of Section 4.09 hereof and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained therein are are, in the reasonable good faith judgment of an the Chief Financial Officer of the CompanyGeneral Partner, either (a) not materially more restrictive, taken as a whole, than those the provisions contained in this Indenturethe ABL Credit Agreement, the Notes and the Note Guarantees or the Term Loan Credit Agreement and in this Indenture as in effect on the date of this Indenture or (b) not reasonably likely to have a material adverse effect on the ability of the Company to make required payments on the NotesIssue Date;
(4) the issuance of preferred stock by a Restricted Subsidiary or the payment of dividends and distributions thereon in accordance with the terms thereof; provided that issuance of such preferred stock is permitted pursuant to Section 4.09 hereof and the terms of such preferred stock do not expressly restrict the ability of a Restricted Subsidiary to pay dividends and distributions or make any other distributions on its Capital Stock (other than requirements to pay dividends and distributions or liquidation preferences on such preferred stock prior to paying any dividends or making any other distributions on such other Capital Stock);
(5) applicable law, rule, regulation regulation, order, approval, license, permit or ordersimilar restriction;
(56) any instrument governing Indebtedness or Capital Stock of a Person acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness or Capital Stock was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, acquired and any amendments, restatements, modifications, renewals, extensions, increases, supplements, increases, refundings, replacements or refinancings thereof; providedprovided that, that the encumbrances and or restrictions contained in any such amendments, restatements, modifications, renewals, extensions, increases, supplements, increases, refundings, replacements or refinancings are, in the reasonable good faith judgment of an the Chief Financial Officer of the CompanyGeneral Partner, no not materially more restrictive, taken as a whole, than those in effect on the date of the acquisition; provided provided, further, that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be incurred;
(67) customary non-assignment provisions in Hydrocarbon purchase and sale contracts or exchange agreements or similar operational agreements or in licenses, easements or leases, in each case, entered into in the ordinary course of business;
(7) 8) purchase money obligations obligations, security agreements or mortgage financings for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on the property purchased or leased of the nature described in clause (3) of Section 4.08(a)) hereof;
(8) 9) any agreement for the sale or other disposition of the Equity Interests in, or all or substantially all of the properties or assets of, a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its the sale or other disposition;
(910) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, in the reasonable good faith judgment of an Officer of the Company, are not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(1011) Liens permitted to be incurred under the provisions of Section 4.12 hereof that limit the right of the debtor to dispose of the assets subject to such Liens;
(1112) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment) entered into with the approval of the Company’s Board of Directors, which limitation is applicable only to the assets that are the subject of such agreements;
(1213) encumbrances or restrictions applicable only any instrument governing Indebtedness of a FERC Subsidiary; provided that such Indebtedness was otherwise permitted by the terms of this Indenture to a Restricted Subsidiary that is not a Domestic Subsidiarybe incurred;
(1314) encumbrances or restrictions on cash cash, Cash Equivalents or other deposits or net worth imposed by customers or lessors under contracts or leases entered into in the ordinary course of business;
(1415) customary encumbrances any agreement or instrument relating to any property or assets acquired after the Issue Date, so long as such encumbrance or restriction relates only to the property or assets so acquired and restrictions contained is not and was not created in agreements anticipation of the types described in the definition of Permitted Business Investmentssuch acquisition;
(1516) agreements governing Hedging Obligations incurred in the ordinary course of businesspermitted from time to time under this Indenture; and
(1617) Indebtedness incurred or Capital Stock issued by any encumbrance or restriction with respect to an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that the restrictions contained in the agreements or instruments governing such Indebtedness or Capital Stock (a) apply only in the event of a payment default or a default with respect to a financial covenant in such agreement was or instrument or (b) will not entered into in anticipation of materially affect the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend Company’s ability to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Unrestricted Subsidiary. In each case set forth above, notwithstanding any stated limitation on the assets or property that may be subject to such encumbrance or restriction, an encumbrance or restriction on a specified asset or property or group or type of assets or property may also apply to all improvements, additions, repairs, attachments or accessions thereto, assets and property affixed or appurtenant thereto, parts, replacements and substitutions therefor, and all products and proceeds thereof, including dividends, distributionsmake principal, interest and increases premium, if any, on the Notes of any series, as determined in respect thereofthe reasonable good faith judgment of the Chief Executive Officer and the Chief Financial Officer of the General Partner.
Appears in 2 contracts
Sources: Supplemental Indenture (NGL Energy Partners LP), Indenture (NGL Energy Partners LP)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock Equity Interests to the Company or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness indebtedness owed to the Company or any of its Restricted Subsidiaries; provided that the priority that any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends, distributions or liquidating distributions before dividends, distributions or liquidating distributions are paid in respect of common stock of such Restricted Subsidiary shall not constitute a restriction on the ability to make dividends or distributions on Capital Stock for purposes of this Section 4.08;
(2) make loans or advances to the Company or any of its Restricted Subsidiaries (it being understood that the subordination of loans or advances made to the Company or any of its Restricted Subsidiaries to other Indebtedness incurred by the Company or any of its Restricted Subsidiaries shall not be deemed a restriction on the ability to make loans or advances)Subsidiaries; or
(3) sell, lease or transfer any of its properties or assets to the Company or any of its Restricted SubsidiariesSubsidiaries (provided that dividend or liquidation priority between classes of Equity Interests, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute such an encumbrance or restriction).
(b) The restrictions in Section 4.08(a) hereof will not apply to encumbrances or restrictions existing under or by reason of:
(1) agreements governing Existing Indebtedness and the Credit Agreement as in effect on the date of this Indenture and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained in the amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are not in the good faith judgment of an Officer of the Company materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements on the date of this IndentureIndenture (as determined in good faith by the Company);
(2) this Indenture, the Notes and Notes, the Note Guarantees, the Secured Debt Documents and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of any of the foregoing;
(3) (A) agreements governing other Indebtedness permitted to be incurred under the provisions of Section 4.09 4.09(b)(15) hereof and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that in the encumbrances case of this sub-clause (A), the restrictions therein would not (i) impair, in the Issuer’s good faith reasonable judgment, the ability of the Issuer and the Guarantors to satisfy the Obligations under the Notes, or (ii) otherwise prohibit the Subsidiaries from paying dividends or making distributions, loans or advances at any time in an amount, together with other amounts available, sufficient to make payments on the Notes due at such time, and (B) agreements governing other Indebtedness permitted to be incurred under Section 4.09(b) other than clause (15) thereof, and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that in the case of this sub-clause (B), the restrictions contained therein are in the reasonable good faith judgment of an Officer of the Company, either (a) not materially more restrictive, taken as a whole, than those contained in this Indenture, the Notes and the Note Guarantees or (as determined in good faith by the Credit Agreement as in effect on the date of this Indenture or (b) not reasonably likely to have a material adverse effect on the ability of the Company to make required payments on the NotesCompany);
(4) applicable law, rule, regulation or order;
(5) any instrument agreement governing or relating to Indebtedness or Capital Stock Equity Interests of a Person Persons acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness or Capital Stock was Equity Interests were incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any PersonPersons, or the properties or assets of any PersonPersons, other than the PersonPersons, or the property or assets of the PersonPersons, so acquired, and any amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings thereof; provided, that the encumbrances and restrictions in any such amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings are, in the reasonable good faith judgment of an Officer of the Company, no more restrictive, taken as a whole, than those in effect on the date of the acquisition; provided further, that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be incurred, and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are not materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements on the date of such acquisition (as determined in good faith by the Company);
(6) customary non-assignment provisions in Hydrocarbon purchase and sale or exchange agreements or similar operational agreements or in licensescontracts, easements or leases, in each casesubleases, licenses and sublicenses entered into in the ordinary course of business;
(7) mortgage financings and purchase money obligations for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on the property mortgaged, purchased or leased of the nature described in clause (3) of Section 4.08(a)the preceding paragraph;
(8) any restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or other disposition of a Restricted Subsidiary that restricts distributions by that all or substantially all of the Equity Interests or assets of such Restricted Subsidiary pending its the closing of such sale or other disposition;
(9) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, in the reasonable good faith judgment of an Officer of the Company, are not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinancedrefinanced (as determined in good faith by the Company);
(10) Liens permitted to be incurred under the provisions of Section 4.12 hereof that limit the right of the debtor to dispose of the assets subject to such Liens;
(11) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment) entered into with the approval of the Company’s Board of Directors), which limitation is applicable only to the assets that are the subject of such agreements;
(12) encumbrances or restrictions applicable only to a Restricted Subsidiary that is not a Domestic Subsidiary;
(13) encumbrances or restrictions on cash or other deposits or net worth imposed by customers or lessors under contracts or leases entered into by the Company or any Restricted Subsidiary;
(13) encumbrances and restrictions contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if the encumbrance or restriction applies only in the event of a payment default or default with respect to a financial covenant contained in such Indebtedness or agreement and such encumbrance or restriction is not materially more disadvantageous to the holders of the Notes than is customary in comparable financings (as determined in good faith by the Company) and the Company determines that any such encumbrance or restriction will not materially affect the Issuer’s ability to make principal or interest payments on the Notes; and
(14) restrictions on the sale, lease or transfer of property or assets arising or agreed to in the ordinary course of business;
(14) customary encumbrances , not relating to any Indebtedness, and restrictions contained in agreements of the types described that do not, individually or in the definition aggregate, detract from the value of Permitted Business Investments;
(15) agreements governing Hedging Obligations incurred in the ordinary course of business; and
(16) any encumbrance property or restriction with respect to an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than in any manner material to the assets and property of such Unrestricted Company or any Restricted Subsidiary. In each case set forth above, notwithstanding any stated limitation on the assets or property that may be subject to such encumbrance or restriction, an encumbrance or restriction on a specified asset or property or group or type of assets or property may also apply to all improvements, additions, repairs, attachments or accessions thereto, assets and property affixed or appurtenant thereto, parts, replacements and substitutions therefor, and all products and proceeds thereof, including dividends, distributions, interest and increases in respect thereof.”
Appears in 2 contracts
Sources: Supplemental Indenture and Amendment to Collateral Agreement (Primus Telecommunications Group Inc), Note Exchange and Consent Agreement (Primus Telecommunications Group Inc)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock to the Company or any of its Restricted Subsidiaries, Subsidiaries or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness indebtedness owed to the Company or any of its Restricted Subsidiaries; provided that the priority that any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends, distributions or liquidating distributions before dividends, distributions or liquidating distributions are paid in respect of common stock of such Restricted Subsidiary shall not constitute a restriction on the ability to make dividends or distributions on Capital Stock for purposes of this Section 4.08;
(2) make loans or advances to the Company or any of its Restricted Subsidiaries (it being understood that the subordination of loans or advances made to the Company or any of its Restricted Subsidiaries to other Indebtedness incurred by the Company or any of its Restricted Subsidiaries shall not be deemed a restriction on the ability to make loans or advances)Subsidiaries; or
(3) sell, lease or transfer any of its properties or assets to the Company or any of its Restricted Subsidiaries.
(b) The restrictions in Section 4.08(a) hereof will not apply to encumbrances or restrictions existing under or by reason of:
(1) agreements governing Existing Indebtedness the Credit Agreement and any other agreement or document relating to a Credit Facility; provided that the terms and conditions of such encumbrances and restrictions are not more restrictive, taken as a whole, than those encumbrances or restrictions imposed in connection with the Credit Agreement as in effect on the date of this Indenture Issue Date, as reasonably determined by the Company or such Restricted Subsidiary;
(2) agreements as in effect on the Issue Date and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained in the amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are not in the good faith judgment of an Officer of the Company materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements on the date of this IndentureIssue Date, as reasonably determined by the Company or such Restricted Subsidiary;
(23) this the Indenture, the Notes, the Exchange Notes, any Additional Notes and the Note Guarantees;
(3) agreements governing other Indebtedness permitted to be incurred under the provisions of Section 4.09 hereof and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained therein are in the reasonable good faith judgment of an Officer of the Company, either (a) not materially more restrictive, taken as a whole, than those contained in this Indenture, the Notes and the Note Guarantees or the Credit Agreement as in effect on the date of this Indenture or (b) not reasonably likely to have a material adverse effect on the ability of the Company to make required payments on the Notes;
(4) applicable law, rule, regulation or order;
(5) any instrument governing Indebtedness or Capital Stock of a Person acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness was incurred or Capital Stock was incurred issued in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, and any amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings thereof; provided, that the encumbrances and restrictions in any such amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings are, in the reasonable good faith judgment of an Officer of the Company, no more restrictive, taken as a whole, than those in effect on the date of the acquisition; provided further, that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be incurred;
(6) customary non-assignment provisions in Hydrocarbon purchase contracts, leases and sale or exchange agreements or similar operational agreements or in licenses, easements or leases, in each case, licenses entered into in the ordinary course of business;
(7) security documents related to mortgage financing, purchase money or similar obligations for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on the property purchased or leased of the nature described in clause (3Section 4.08(a)(3) of Section 4.08(a)hereof;
(8) any agreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions or other activities by that Restricted Subsidiary pending its the sale or other disposition;
(9) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, in the reasonable good faith judgment of an Officer of the Company, are not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced, as reasonably determined by the Company or such Restricted Subsidiary;
(10) security or other documents evidencing Liens permitted to be incurred under the provisions of Section 4.12 that limit the right of the debtor to dispose of the assets subject to such hereof, including Permitted Liens;
(11) provisions limiting or prohibiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements, merger agreements and other similar agreements (including agreements in effect on the Issue Date or entered into (i) in connection with a Restricted Investmentthe ordinary course of business, or (ii) entered into with the approval of the Company’s 's Board of DirectorsDirectors or Chief Financial Officer, which limitation or prohibition is applicable only to the assets that are the subject of such agreements;
(12) encumbrances or restrictions applicable only to a Restricted Subsidiary that is not a Domestic Subsidiary;
(13) encumbrances or restrictions on cash or other deposits or net worth imposed by customers under contracts;
(13) any instrument governing any Indebtedness or lessors under contracts Capital Stock of any Person that is an Unrestricted Subsidiary as in effect on the date that such Person becomes a Restricted Subsidiary, which encumbrance or leases entered into in restriction is not applicable to any Person or the ordinary course property or assets of business;any Person, other than the Person and its Restricted Subsidiaries or the property or asset of the person and its Restricted Subsidiaries; and
(14) customary encumbrances and or restrictions contained in imposed by any agreement, amendment, modification, restatement, renewal, supplement, refunding, replacement or refinancing that amends, modifies, restates, supplements, refunds, extends, renews, refinances or replaces the agreements of containing the types described encumbrances or restrictions in the definition of Permitted Business Investments;
foregoing clauses (151) agreements governing Hedging Obligations incurred in the ordinary course of business; and
through (16) any encumbrance or restriction with respect to an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary13); provided that such agreement was not entered into in anticipation the terms and conditions of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance agreement, amendment, modification, restatement, renewal, supplement, refunding, replacement or restriction does not extend refinancing are no more restrictive in any material respect, taken as a whole, than the encumbrances or restrictions imposed pursuant to any assets the agreement being extended, renewed, refinanced or property of replaced, as reasonably determined by the Company or any other such Restricted Subsidiary other than the assets and property of such Unrestricted Subsidiary. In each case set forth above, notwithstanding any stated limitation on the assets or property that may be subject to such encumbrance or restriction, an encumbrance or restriction on a specified asset or property or group or type of assets or property may also apply to all improvements, additions, repairs, attachments or accessions thereto, assets and property affixed or appurtenant thereto, parts, replacements and substitutions therefor, and all products and proceeds thereof, including dividends, distributions, interest and increases in respect thereof.
Appears in 2 contracts
Sources: Indenture (M & F Worldwide Corp), Indenture (M & F Worldwide Corp)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock to the Company or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness or other obligations owed to the Company or any of its Restricted Subsidiaries; provided that the priority that any series of Preferred Stock preferred stock of a Restricted Subsidiary has in receiving dividends, distributions dividends or liquidating distributions before dividends, distributions dividends or liquidating distributions are paid in respect of common stock of such Restricted Subsidiary shall not constitute a restriction on the ability to make dividends or distributions on Capital Stock for purposes of this Section 4.08, provided that the terms of such preferred stock do not expressly restrict the ability of such Restricted Subsidiary to pay dividends or make distributions on its Capital Stock;
(2) make loans or advances to the Company or any of its Restricted Subsidiaries (it being understood that the subordination of loans or advances made to the Company or any of its Restricted Subsidiaries Subsidiary to other Indebtedness incurred by the Company or any of its Restricted Subsidiaries Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its properties or assets to the Company or any of its Restricted Subsidiaries.
(b) The restrictions in Section 4.08(a) hereof will not apply to encumbrances or restrictions existing under or by reason of:
(1) agreements governing Existing Indebtedness and the Credit Agreement as in effect on the date of this Indenture and any amendments, modifications, restatements, modificationsrenewals, renewalsincreases, supplements, refundings, replacements or refinancings of those agreements; agreements or the Indebtedness to which they relate, provided that the encumbrances or restrictions contained in the amendments, modifications, restatements, modificationsrenewals, renewalsincreases, supplements, refundings, replacements or refinancings are not in the good faith judgment of an Officer of the Company materially no more restrictive, taken as a whole, with respect to such dividend dividend, distribution and other payment restrictions than those contained in those agreements on the date of this Indenture;
(2) this Indenture, the Notes and the Note Guarantees;
(3) agreements governing other Indebtedness permitted to be incurred under the provisions of Section 4.09 hereof and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained therein are in the reasonable good faith judgment of an Officer of the Company, either (a) not materially more restrictive, taken as a whole, than those contained in this Indenture, the Notes and the Note Guarantees or the Credit Agreement as in effect on the date of this Indenture or (b) not reasonably likely to have a material adverse effect on the ability of the Company to make required payments on the Notesapplicable law;
(4) applicable law, rule, regulation or order;
(5) any instrument governing Indebtedness or Capital Stock of a Person acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness or Capital Stock was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, and any amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings thereof; provided, that the encumbrances and restrictions in any such amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings are, in the reasonable good faith judgment of an Officer of the Company, no more restrictive, taken as a whole, than those in effect on the date of the acquisition; provided further, that, in the case of Indebtedness, such Indebtedness was otherwise permitted by the terms of this Indenture to be incurred;
(65) customary non-assignment provisions in Hydrocarbon purchase and sale equipment or exchange agreements other licenses, easements, leases or similar operational agreements or in licenses, easements or leasesinstruments, in each case, case entered into in the ordinary course of businessbusiness and consistent with past practices;
(76) Capital Lease Obligations, mortgage financings or purchase money obligations obligations, in each case for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on the that property purchased or leased of the nature described in clause (3) of Section 4.08(a)the preceding paragraph;
(8) 7) any agreement for the sale or other disposition of a Restricted Subsidiary of the Company that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(9) 8) Permitted Refinancing Indebtedness; , provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, in the reasonable good faith judgment of an Officer of the Company, not materially are no more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(109) Liens securing Indebtedness otherwise permitted to be incurred under the provisions of Section 4.12 that limit the right of the debtor to dispose of the assets subject to such Liens;
(1110) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment) entered into with the approval ordinary course of the Company’s Board of Directorsbusiness, which limitation is limitations are applicable only to the assets or property that are is the subject of such agreements;
(11) any agreement or instrument relating to any property or assets acquired after the date of this Indenture, so long as such encumbrance or restriction relates only to the property or assets so acquired and is not and was not created in anticipation of such acquisitions;
(12) encumbrances or restrictions applicable only Hedging Contracts permitted from time to a Restricted Subsidiary that is not a Domestic Subsidiarytime under this Indenture;
(13) encumbrances or restrictions on cash cash, Cash Equivalents or other deposits or net worth imposed by customers or lessors under contracts or leases entered into in the ordinary course of business;
(14) customary encumbrances and restrictions contained in agreements of the types described in the definition of Permitted Business Investments;
(15) agreements governing Hedging Obligations incurred in the ordinary course of business; and
(16) with respect to any Foreign Subsidiary, any encumbrance or restriction contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was incurred if either (a) the encumbrance or restriction applies only in the event of a payment default or a default with respect to an Unrestricted Subsidiary pursuant to a financial covenant in such Indebtedness or by reason of an agreement or (b) the Company determines that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does will not extend materially affect the Company’s ability to make principal or interest payments on the Notes, as determined in good faith by the Board of Directors of the Company, whose determination shall be conclusive; and
(15) any assets or property other agreement governing Indebtedness of the Company or any other Restricted Subsidiary other Guarantor that is permitted to be incurred under Section 4.09; provided, however, that such encumbrances or restrictions are not materially more restrictive, taken as a whole, than those contained in this Indenture or the assets and property of such Unrestricted Subsidiary. In each case set forth above, notwithstanding any stated limitation Credit Agreement as in effect on the assets or property that may be subject to such encumbrance or restriction, an encumbrance or restriction on a specified asset or property or group or type date of assets or property may also apply to all improvements, additions, repairs, attachments or accessions thereto, assets and property affixed or appurtenant thereto, parts, replacements and substitutions therefor, and all products and proceeds thereof, including dividends, distributions, interest and increases in respect thereofthis Indenture.
Appears in 2 contracts
Sources: Indenture (Exterran Partners, L.P.), Indenture (Exterran Partners, L.P.)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company Issuer will not, and will not permit any of its Restricted Subsidiaries that are not Guarantors to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary that is not a Guarantor to:
(1) pay dividends or make any other distributions on its Capital Stock to the Company Issuer or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Company Issuer or any of its Restricted Subsidiaries; provided that the priority that any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends, distributions or liquidating distributions before dividends, distributions or liquidating distributions are paid in respect of common stock of such Restricted Subsidiary shall not constitute a restriction on the ability to make dividends or distributions on Capital Stock for purposes of this Section 4.08;
(2) make loans or advances to the Company Issuer or any of its Restricted Subsidiaries (it being understood that the subordination of loans or advances made to the Company or any of its Restricted Subsidiaries to other Indebtedness incurred by the Company or any of its Restricted Subsidiaries shall not be deemed a restriction on the ability to make loans or advances)Subsidiaries; or
(3) sell, lease or transfer any of its properties or assets to the Company Issuer or any of its Restricted Subsidiaries.
(b) The restrictions in Section 4.08(a) hereof will not apply to encumbrances or restrictions existing under or by reason of:
(1) agreements governing Existing Indebtedness and contractual encumbrances or restrictions of the Credit Agreement as Issuer or any of its Restricted Subsidiaries (i) in effect on the date of this Indenture and any amendments, restatements, modifications, renewals, supplements, refundings, replacements Issue Date or refinancings of those agreements; provided that (ii) pursuant to the encumbrances or restrictions contained in the amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are not in the good faith judgment of an Officer of the Company materially more restrictive, taken as a whole, with respect to such dividend A&E Credit Agreements and other payment restrictions than those contained in those agreements on documents relating to the date of this IndentureA&E Credit Agreements, related swap contracts and Indebtedness permitted pursuant to Section 4.09(b)(2);
(2) this Indenture, the Notes, the Note Guarantees (and any Additional Notes and related guarantees), the 2022 Secured Indenture, the 2022 Secured Notes and the 2022 Secured Note GuaranteesGuarantees (and any Additional Secured Notes (as defined in the 2022 Secured Indenture) and related guarantees), the 2022 Unsecured Indenture, the 2022 Unsecured Notes and the 2022 Unsecured Note Guarantees (and any Additional Unsecured Notes (as defined in the 2022 Unsecured Indenture) and related guarantees), the Security Documents and Intercreditor Agreements and any other documents relating to the 2022 Secured Indenture, the 2022 Unsecured Indenture or this Indenture;
(3) agreements governing other Indebtedness Indebtedness, Disqualified Stock or preferred stock permitted to be incurred under the provisions of Section 4.09 hereof and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained therein are in the reasonable good faith judgment of an Officer of the Company, either (ai) are not materially more restrictive, taken as a whole, restrictive than those contained in this Indenture, the Notes and the Note Guarantees or the Credit Agreement as agreements governing Indebtedness in effect on the date of this Indenture Issue Date, or (bii) are not reasonably likely materially more disadvantageous to have a material adverse effect on the ability Holders of the Company Notes than is customary in comparable financings (as determined by the Issuer in good faith, which determination shall be conclusive) and in the case of subclause (ii) either (x) the Issuer determines (in good faith) that such encumbrance or restriction will not affect the Issuer’s ability to make required principal or interest payments on the NotesNotes or (y) such encumbrances or restrictions apply only during the continuance of a default in respect of payment or a financial maintenance covenant relating to such Indebtedness;
(4) applicable law, rule, regulation regulation, order, approval, license, permit or ordersimilar restriction;
(5) any instrument governing Indebtedness or Capital Stock of a Person acquired by by, or merged, amalgamated or consolidated with or into, the Company Issuer or any of its Restricted Subsidiaries as in effect at the time of such acquisition or at the time it merges with or into the Issuer or any Restricted Subsidiary (except to the extent such Indebtedness or Capital Stock instrument was incurred entered into in connection with or in contemplation of such acquisitionthereof), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, and any amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements acquired or refinancings thereof; provided, that the encumbrances and restrictions in any such amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings are, in the reasonable good faith judgment of an Officer of the Company, no more restrictive, taken as a whole, than those in effect on the date of the acquisitiondesignated; provided further, that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be incurred;
(6) customary non-assignment or sub-letting provisions in Hydrocarbon purchase and sale or exchange agreements or similar operational agreements or in licensescontracts, easements or leases, in each casesub-leases, licenses and sub-licenses entered into in the ordinary course of business;
(7) purchase money obligations for property acquired in the ordinary course of business obligations, mortgage financings and Capital Lease Obligations that impose restrictions on the property purchased or leased of the nature described in clause (3) of Section 4.08(a)) hereof;
(8) contracts for the sale or other disposition of Capital Stock or assets, including any agreement for the sale or other disposition of a Restricted Subsidiary of all or substantially all of the assets of such Restricted Subsidiary in compliance with the terms of this Indenture that restricts distributions by that Restricted Subsidiary pending its such sale or other disposition;
(9) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, in the reasonable good faith judgment of an Officer of the Company, are not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(10) Secured Indebtedness otherwise permitted to be incurred pursuant to Section 4.09 hereof and Liens permitted to be incurred under pursuant to the provisions of Section 4.12 that limit the right of the debtor to dispose of the assets subject to such Lienshereof;
(11) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements agreements, shareholder agreements, limited liability company organizational documents and other similar agreements (including agreements entered into in connection with a Restricted Investment) entered into with the approval of the Company’s Board of DirectorsPermitted Investment or pursuant to Section 4.07 hereof), which limitation is applicable only to the assets that are the subject of such agreements;
(12) encumbrances or restrictions applicable only to a Restricted Subsidiary that is not a Domestic Subsidiary;
(13) encumbrances or restrictions on cash cash, Cash Equivalents or other deposits or net worth imposed by customers or lessors under contracts or leases entered into in the ordinary course of business;
(13) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(14) customary encumbrances Restricted Payments that do not violate the provisions of Section 4.07 hereof and restrictions contained in agreements of the types described in the definition of any Permitted Business InvestmentsInvestment;
(15) agreements governing Hedging Obligations incurred any encumbrance or restriction of a Securitization Entity effected in the ordinary course of businessconnection with a Qualified Securitization Transaction; andprovided, however, that such restrictions apply only to such Securitization Entity;
(16) other Indebtedness, Disqualified Stock or preferred stock of Non-Guarantor Subsidiaries that is incurred or issued subsequent to the Issue Date pursuant to Section 4.09 hereof;
(17) any encumbrance or restriction with respect to an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became a Restricted SubsidiarySubsidiary of the Issuer; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary of the Issuer and any such encumbrance or restriction does not extend to any assets or property of the Company or Issuer of any other Restricted Subsidiary other than the assets and property of such Unrestricted Subsidiary. In each case set forth above, notwithstanding any stated limitation ;
(18) provisions with respect to the receipt of a rebate on the assets an operating lease until all obligations due to a lessor on other operating leases are satisfied or property that may be subject to such encumbrance or restriction, an encumbrance or restriction on a specified asset or property or group or type other customary restrictions in respect of assets or contract rights acquired by a Restricted Subsidiary of the Issuer in connection with a Sale/Leaseback Transaction;
(19) encumbrances and restrictions contained in contracts entered into in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property may also apply or assets of the Issuer or any Restricted Subsidiary of the Issuer or the ability of the Issuer or such Restricted Subsidiary to all improvementsrealize such value, additionsor to make any distributions relating to such property or assets in each case in any material respect; and
(20) any encumbrances or restrictions of the type referred to in Sections 4.08(a)(1), repairs(2) and (3) hereof imposed by any amendments, attachments or accessions theretomodifications, assets and property affixed or appurtenant theretorestatements, partsrenewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (1) through (19) above; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Issuer, not materially more restrictive as a whole with respect to such dividend and substitutions thereforother payment restrictions than those contained in the dividend or other payment restrictions prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing. For purposes of determining compliance with this Section 4.08, (i) the priority of any preferred stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common shares shall not be deemed a restriction on the ability to make distributions on Capital Stock and all products and proceeds thereof, including dividends, distributions, interest and increases in respect thereof(ii) the subordination of loans or advances made to the Issuer or any of its Restricted Subsidiaries to other Indebtedness incurred by the Issuer or any such Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances.
Appears in 2 contracts
Sources: Indenture (McGraw Hill, Inc.), Indenture (McGraw Hill, Inc.)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company Parent will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock to the Company Parent or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness or other obligations owed to the Company Parent or any of its Restricted Subsidiaries; provided that the priority that any series of Preferred Stock preferred stock of a Restricted Subsidiary has in receiving dividends, distributions dividends or liquidating distributions before dividends, distributions dividends or liquidating distributions are paid in respect of common stock of such Restricted Subsidiary shall not constitute a restriction on the ability to make dividends or distributions on Capital Stock for purposes of this Section 4.08, provided that the terms of such preferred stock do not expressly restrict the ability of such Restricted Subsidiary to pay dividends or make distributions on its Capital Stock;
(2) make loans or advances to the Company Parent or any of its Restricted Subsidiaries (it being understood that the subordination of loans or advances made to the Company Parent or any of its Restricted Subsidiaries to other Indebtedness incurred by the Company Parent or any of its Restricted Subsidiaries shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its properties or assets to the Company Parent or any of its Restricted Subsidiaries.
(b) The restrictions in Section 4.08(a) hereof will not apply to encumbrances or restrictions existing under or by reason of:
(1) agreements governing Existing Indebtedness and the Credit Agreement as in effect on the date of this Indenture and any amendments, modifications, restatements, modificationsrenewals, renewalsincreases, supplements, refundings, replacements or refinancings of those agreements; agreements or the Indebtedness to which they relate, provided that the encumbrances or restrictions contained in the amendments, modifications, restatements, modificationsrenewals, renewalsincreases, supplements, refundings, replacements or refinancings are not in the good faith judgment of an Officer of the Company materially no more restrictive, taken as a whole, with respect to such dividend dividend, distribution and other payment restrictions than those contained in those agreements on the date of this Indenture;
(2) this Indenture, the Notes and the Note Guarantees;
(3) agreements governing other Indebtedness permitted to be incurred under the provisions of Section 4.09 hereof and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained therein are in the reasonable good faith judgment of an Officer of the Company, either (a) not materially more restrictive, taken as a whole, than those contained in this Indenture, the Notes and the Note Guarantees or the Credit Agreement as in effect on the date of this Indenture or (b) not reasonably likely to have a material adverse effect on the ability of the Company to make required payments on the Notesapplicable law;
(4) applicable law, rule, regulation or order;
(5) any instrument governing Indebtedness or Capital Stock of a Person acquired by the Company Parent or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness or Capital Stock was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, and any amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings thereof; provided, that the encumbrances and restrictions in any such amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings are, in the reasonable good faith judgment of an Officer of the Company, no more restrictive, taken as a whole, than those in effect on the date of the acquisition; provided further, that, in the case of Indebtedness, such Indebtedness was otherwise permitted by the terms of this Indenture to be incurred;
(65) customary non-assignment provisions in Hydrocarbon purchase and sale equipment or exchange agreements other licenses, easements, leases or similar operational agreements or in licenses, easements or leasesinstruments, in each case, case entered into in the ordinary course of businessbusiness and consistent with past practices;
(76) Capital Lease Obligations, mortgage financings or purchase money obligations obligations, in each case for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on the that property purchased or leased of the nature described in clause (3) of Section 4.08(a)the preceding paragraph;
(8) 7) any agreement for the sale or other disposition of a Restricted Subsidiary of the Parent that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(9) 8) Permitted Refinancing Indebtedness; , provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, in the reasonable good faith judgment of an Officer of the Company, not materially are no more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(109) Liens securing Indebtedness otherwise permitted to be incurred under the provisions of Section 4.12 that limit the right of the debtor to dispose of the assets subject to such Liens;
(1110) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment) entered into with the approval ordinary course of the Company’s Board of Directorsbusiness, which limitation is limitations are applicable only to the assets or property that are is the subject of such agreements;
(11) any agreement or instrument relating to any property or assets acquired after the date of this Indenture, so long as such encumbrance or restriction relates only to the property or assets so acquired and is not and was not created in anticipation of such acquisitions;
(12) encumbrances or restrictions applicable only Hedging Contracts permitted from time to a Restricted Subsidiary that is not a Domestic Subsidiarytime under this Indenture;
(13) encumbrances or restrictions on cash cash, Cash Equivalents or other deposits or net worth imposed by customers or lessors under contracts or leases entered into in the ordinary course of business;
(14) customary encumbrances and restrictions contained in agreements of the types described in the definition of Permitted Business Investments;
(15) agreements governing Hedging Obligations incurred in the ordinary course of business; and
(16) with respect to any Foreign Subsidiary, any encumbrance or restriction contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was incurred if either (a) the encumbrance or restriction applies only in the event of a payment default or a default with respect to an Unrestricted Subsidiary pursuant to a financial covenant in such Indebtedness or by reason of an agreement or (b) the Parent determines that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does will not extend materially affect the Company’s ability to any assets make principal or property interest payments on the Notes, as determined in good faith by the Board of Directors of the Company Parent, whose determination shall be conclusive; and
(15) any other agreement governing Indebtedness of the Issuers or any other Restricted Subsidiary other Guarantor that is permitted to be incurred under Section 4.09; provided, however, that such encumbrances or restrictions are not materially more restrictive, taken as a whole, than those contained in this Indenture or the assets and property of such Unrestricted Subsidiary. In each case set forth above, notwithstanding any stated limitation Credit Agreement as in effect on the assets or property that may be subject to such encumbrance or restriction, an encumbrance or restriction on a specified asset or property or group or type date of assets or property may also apply to all improvements, additions, repairs, attachments or accessions thereto, assets and property affixed or appurtenant thereto, parts, replacements and substitutions therefor, and all products and proceeds thereof, including dividends, distributions, interest and increases in respect thereofthis Indenture.
Appears in 2 contracts
Sources: Indenture (Archrock, Inc.), Indenture (Archrock Partners, L.P.)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock to the Company or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness or other obligations owed to the Company or any of its Restricted Subsidiaries; provided that the priority that any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends, distributions or liquidating distributions before dividends, distributions or liquidating distributions are paid in respect of common stock of such Restricted Subsidiary shall not constitute a restriction on the ability to make dividends or distributions on Capital Stock for purposes of this Section 4.08;
(2) make loans or advances to the Company or any of its Restricted Subsidiaries (it being understood that the subordination of loans or advances made to the Company or any of its Restricted Subsidiaries to other Indebtedness incurred by the Company or any of its Restricted Subsidiaries shall not be deemed a restriction on the ability to make loans or advances)Subsidiaries; or
(3) sell, lease or transfer any of its properties or assets to the Company or any of its Restricted Subsidiaries.
(b) The restrictions in Section 4.08(a) hereof will not apply to encumbrances or restrictions existing under or by reason of:
(1) agreements governing Existing Indebtedness and the Credit Agreement as in effect on the date of this Indenture and any amendments, modifications, restatements, modificationsrenewals, renewalsincreases, supplements, refundings, replacements or refinancings of those agreementsagreements or the Indebtedness to which they relate; provided that the encumbrances or restrictions contained in the amendments, modifications, restatements, modificationsrenewals, renewalsincreases, supplements, refundings, replacements or refinancings are not are, in the good faith judgment of an Officer authorized officer of the Company Company, not materially more restrictive, taken as a whole, with respect to such dividend dividend, distribution and other payment restrictions than those contained in those agreements on the date of this Indenture; provided further that any such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing of the Existing ABL Facility that applies such restrictions to the Company or any of its Subsidiaries that are not then subject to such restrictions shall not be deemed to be so materially more restrictive;
(2) this Indenture, the Notes (and any Additional Notes) and the Note Guarantees;
(3) agreements governing other Indebtedness permitted to be incurred under the provisions of Section 4.09 hereof and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained therein are in the reasonable good faith judgment of an Officer of the Company, either (a) not materially more restrictive, taken as a whole, than those contained in this Indenture, the Notes and the Note Guarantees or the Credit Agreement as in effect on the date of this Indenture or (b) not reasonably likely to have a material adverse effect on the ability of the Company to make required payments on the Notes;
(4) applicable law, rule, regulation regulation, order, approval, license, permit or ordersimilar restriction;
(54) any instrument governing Indebtedness or Capital Stock Equity Interests or any other agreement of a Person acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness or Capital Stock was Equity Interests were incurred or such agreement entered into in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, and any amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings thereof; provided, that the encumbrances and restrictions in any such amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings are, in the reasonable good faith judgment of an Officer of the Company, no more restrictive, taken as a whole, than those in effect on the date of the acquisition; provided further, that, in the case of Indebtedness, such Indebtedness was otherwise permitted by the terms of this Indenture to be incurred; and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of any such instrument or agreement or any related Indebtedness; provided that the amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of an authorized officer of the Company, not materially more restrictive, taken as a whole, with respect to such dividend, distribution and other payment restrictions than those contained in this Indenture or those agreements in effect at the time acquired;
(65) customary non-assignment provisions in Hydrocarbon contracts for purchase, gathering, processing, fractioning, sale, transportation or exchange of Hydrocarbons, storage agreements, transportation agreements or purchase and sale or exchange agreements, pipeline or terminalling agreements, joint venture agreements or similar operational operating agreements or in licenses, easements easements, servitudes, rights-of-way or leasesleases or other agreements, in each case, case entered into in the ordinary course of business;
(76) Finance Lease Obligations, operating leases, mortgage financings or purchase money obligations obligations, in each case for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on the that property purchased or leased of the nature described in clause (3Section 4.08(a)(3) of Section 4.08(a)hereof;
(8) 7) any agreement for the sale or other disposition of some or all of the Capital Stock of, or any property and assets of, a Restricted Subsidiary of the Company that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(9) 8) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, in the reasonable good faith judgment of an Officer authorized officer of the Company, not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(109) Liens securing Indebtedness otherwise permitted to be incurred under the provisions of Section 4.12 hereof or agreements governing such Liens or the Indebtedness secured thereby that limit the right of the debtor to dispose of or otherwise transfer the assets subject to such Liens;
(1110) provisions limiting with respect to the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, stock sale agreements, sale-leaseback agreements, stock sale buy/sell agreements and other similar agreements agreements;
(including agreements entered into in connection with a Restricted Investment11) entered into with any agreement or instrument relating to any property or assets acquired after the approval date of the Company’s Board of Directorsthis Indenture, which limitation is applicable so long as such encumbrance or restriction relates only to the property or assets that are the subject so acquired and is not and was not created in anticipation of such agreementsacquisitions;
(12) encumbrances or restrictions applicable only to a Restricted Subsidiary that is not a Domestic Subsidiary;
(13) encumbrances or restrictions on cash or other deposits or net worth imposed by customers or lessors under contracts or leases entered into in the ordinary course of business;
(13) encumbrances or restrictions contained in, or in respect of, Hedging Contracts permitted under this Indenture from time to time;
(14) customary any encumbrances and or restrictions contained in, or in respect of, agreements governing Investments of the types type described in the definition of “Permitted Business InvestmentsInvestment”;
(15) any other agreement governing Indebtedness of the Company or any Restricted Subsidiary that is permitted to be incurred by Section 4.09 and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of those agreements governing Hedging Obligations or the Indebtedness to which they related; provided, however, that either (a) such encumbrances or restrictions are, in the good faith judgment of an authorized officer of the Company, not materially more restrictive, taken as a whole, than those contained in this Indenture or the Existing ABL Facility as it exists on the date of this Indenture or (b) such encumbrances or restrictions are ordinary and customary in light of the type of Indebtedness being incurred and the jurisdiction of the obligor and will, in the good faith judgment of an authorized officer of the Company, not affect in any material respect the Company’s or any Guarantor’s ability to repay the Notes;
(16) consisting of customary restrictions pursuant to any Permitted Receivables Financing;
(17) arising or agreed to in the ordinary course of business; and
(16) , not relating to any encumbrance or restriction with respect to an Unrestricted Subsidiary pursuant to or by reason Indebtedness, and that, in the good faith judgment of an agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation authorized officer of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance Company, do not, individually or restriction does not extend to any in the aggregate, detract from the value of property or assets or property of the Company or any other Restricted Subsidiary other than thereof in any manner material to the assets and property Company or any Restricted Subsidiary thereof; and
(18) existing under the Intermediation Agreement. For purposes of such Unrestricted Subsidiary. In each case set forth abovedetermining compliance with this Section 4.08, notwithstanding (1) the priority of any stated limitation preferred stock in receiving dividends or liquidating distributions prior to distributions being paid on common stock shall not be deemed a restriction on the assets ability to make distributions on Capital Stock and (2) the subordination of loans or property that may advances made to the Company or a Restricted Subsidiary of the Company to other Indebtedness incurred by the Company or any such Restricted Subsidiary shall not be subject to such encumbrance or restriction, an encumbrance or deemed a restriction on a specified asset the ability to make loans or property or group or type of assets or property may also apply to all improvements, additions, repairs, attachments or accessions thereto, assets and property affixed or appurtenant thereto, parts, replacements and substitutions therefor, and all products and proceeds thereof, including dividends, distributions, interest and increases in respect thereofadvances.
Appears in 2 contracts
Sources: Indenture (CVR Energy Inc), Indenture (CVR Energy Inc)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company Except as set forth in Section 10.3(b) hereof, the Authority will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
: (1i) pay dividends or make any other distributions on its Capital Stock to the Company or any of its Restricted SubsidiariesStock, or with respect to any other interest or participation in, or measured by, its profits, to the Authority or any of the Authority’s Restricted Subsidiaries, or pay any Indebtedness indebtedness owed to the Company Authority or any of its the Authority’s Restricted Subsidiaries; provided that the priority that any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends, distributions or liquidating distributions before dividends, distributions or liquidating distributions are paid in respect of common stock of such Restricted Subsidiary shall not constitute a restriction on the ability to make dividends or distributions on Capital Stock for purposes of this Section 4.08;
(2ii) make loans or advances to the Company Authority or any of its the Authority’s Restricted Subsidiaries Subsidiaries; or (it being understood that the subordination of loans or advances made to the Company or any of its Restricted Subsidiaries to other Indebtedness incurred by the Company or any of its Restricted Subsidiaries shall not be deemed a restriction on the ability to make loans or advances); or
(3iii) sell, lease or transfer any of its properties or assets to the Company Authority or any of its the Authority’s Restricted Subsidiaries.
(b) The restrictions in provisions of Section 4.08(a10.3(a) hereof will not apply to encumbrances or restrictions existing under or by reason of:
(1i) agreements governing contractual encumbrances or restrictions in effect on the Closing, including without limitation pursuant to Existing Indebtedness and the Bank Credit Agreement Facility (including any security documents relating to the Existing Indebtedness and the Bank Credit Facility) as in effect on the date of this Indenture Closing and any amendments, modifications, restatements, modificationsrenewals, renewalsextensions, increases, supplements, refundings, replacements Replacements or refinancings of those agreementsthereof; provided that the encumbrances or restrictions contained in the such amendments, modifications, restatements, modificationsrenewals, renewalsextensions, increases, supplements, refundings, replacements Replacements or refinancings are not in the good faith judgment of an Officer of the Company materially no more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements on the date of this Indenture;
(2) this Indenturesuch contractual encumbrance or restriction, the Notes and the Note Guarantees;
(3) agreements governing other Indebtedness permitted to be incurred under the provisions of Section 4.09 hereof and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained therein are in the reasonable good faith judgment of an Officer of the Company, either (a) not materially more restrictive, taken as a whole, than those contained in this Indenture, the Notes and the Note Guarantees or the Credit Agreement as in effect on the date of this Indenture or (b) not reasonably likely to have a material adverse effect on the ability of the Company to make required payments on the NotesClosing;
(4ii) the Notes, this Agreement and the other Note Documents;
(iii) applicable law, law or any applicable rule, regulation or order;
(5iv) any agreement or other instrument governing Indebtedness or Capital Stock of a Person acquired by the Company Authority or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness or Capital Stock was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, and any amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings thereof; provided, that the encumbrances and restrictions in any such amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings are, in the reasonable good faith judgment of an Officer of the Company, no more restrictive, taken as a whole, than those in effect on the date of the acquisition; provided further, that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be incurred;
(6v) customary non-assignment provisions in Hydrocarbon purchase and sale or exchange agreements or similar operational agreements or in licenses, easements or leases, in each case, licenses or other contracts entered into in the ordinary course of businessbusiness and consistent with past practices;
(7vi) purchase money obligations (including, without limitation, Capital Lease Obligations) for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on the property purchased or leased so acquired of the nature described in clause (3Section 10.3(a)(iii) of Section 4.08(a)hereof;
(8) vii) contracts or agreements for the sale of assets that impose restrictions on the transfer of such assets and any contract or agreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions by that such Restricted Subsidiary pending its sale or other disposition;
(9viii) Permitted Refinancing Indebtedness; provided provided, that the applicable restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, in the reasonable good faith judgment of an Officer of the Company, not materially are no more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(10ix) Liens any provision of secured Indebtedness otherwise permitted to be incurred under the provisions of Section 4.12 pursuant to Sections 10.4 and 10.9 hereof that limit limits the right of the debtor Authority or any of its Restricted Subsidiaries to dispose of the assets subject to the Liens securing such LiensIndebtedness;
(11x) provisions limiting with respect to the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment) entered into with the approval ordinary course of the Company’s Board of Directors, which limitation is applicable only to the assets that are the subject of such agreementsbusiness;
(12xi) encumbrances or restrictions applicable only to a Restricted Subsidiary that is not a Domestic Subsidiary;
(13) encumbrances or restrictions on cash or other deposits or net worth imposed by customers or lessors under contracts or leases entered into in the ordinary course of business;
(14xii) customary Indebtedness, Disqualified Stock or preferred stock of the Authority or any Guarantor that is incurred subsequent to the Closing pursuant to Section 10.4 hereof containing applicable encumbrances and restrictions contained that are not materially more restrictive than the encumbrances and restrictions in agreements of effect on the types described in Closing pursuant to this Agreement and the definition of Permitted Business Investments;
(15) agreements governing Hedging Obligations incurred in the ordinary course of businessBank Credit Facility taken together; and
(16xiii) documents or agreements evidencing, relating to or otherwise governing any encumbrance Permitted Lease Financing to the extent such encumbrances or restriction restrictions are applicable solely to the Income Assets with respect to an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Unrestricted Subsidiary. In each case set forth above, notwithstanding any stated limitation on the assets or property that may be subject to such encumbrance or restriction, an encumbrance or restriction on a specified asset or property or group or type of assets or property may also apply to all improvements, additions, repairs, attachments or accessions thereto, assets and property affixed or appurtenant thereto, parts, replacements and substitutions therefor, and all products and proceeds thereof, including dividends, distributions, interest and increases in respect thereofPermitted Lease Financing.
Appears in 2 contracts
Sources: Facility Agreement (Mohegan Tribal Gaming Authority), Note Purchase Agreement (Mohegan Tribal Gaming Authority)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company will not, and will not permit any of its Restricted Subsidiaries that are not Guarantors to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock to the Company or any of its Restricted Subsidiaries, Subsidiaries or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Company or any of its Restricted Subsidiaries; provided that the priority that any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends, distributions or liquidating distributions before dividends, distributions or liquidating distributions are paid in respect of common stock of such Restricted Subsidiary shall not constitute a restriction on the ability to make dividends or distributions on Capital Stock for purposes of this Section 4.08;
(2) make loans or advances to the Company or any of its Restricted Subsidiaries profits (it being understood that the subordination priority of loans any preferred stock in receiving dividends or advances made liquidating distributions prior to the Company dividends or any of its Restricted Subsidiaries to other Indebtedness incurred by the Company or any of its Restricted Subsidiaries liquidating distributions being paid on common stock shall not be deemed a restriction on the ability to make loans distributions on Capital Stock);
(2) pay any Indebtedness owed to the Company or advances)any Restricted Subsidiary; or
(3) sell, lease or transfer any of its properties or assets to the Company or any of its Restricted Subsidiaries.
(b) The restrictions in Section 4.08(a) hereof will not apply to encumbrances or restrictions existing under or by reason of:
(1) agreements governing Existing Indebtedness and the Credit Agreement as contractual encumbrances or restrictions in effect on the date of this Indenture Issue Date, including pursuant to the Existing Credit Agreement and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained in the amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are not in the good faith judgment of an Officer of the Company materially more restrictive, taken as a whole, with respect to such dividend related documentation (including security documents) and other payment restrictions than those contained in those agreements on the date of this IndentureHedging Obligations;
(2) this Indenture, the Notes, any Additional Notes and or the Note Guarantees;
(3) agreements governing other Indebtedness permitted to be incurred under the provisions of Section 4.09 hereof and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained therein are purchase money obligations for property acquired in the reasonable good faith judgment ordinary course of an Officer business and Capitalized Lease Obligations that impose restrictions of the Company, either (anature discussed in Section 4.08(a)(3) not materially more restrictive, taken as a whole, than those contained in this Indenture, the Notes and the Note Guarantees or the Credit Agreement as in effect hereof on the date of this Indenture or (b) not reasonably likely to have a material adverse effect on the ability of the Company to make required payments on the Notesproperty so acquired;
(4) applicable law, rule, regulation or order;
(5) any agreement or other instrument governing Indebtedness or Capital Stock of a Person acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness or Capital Stock was incurred but not created in connection with therewith or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, and any amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings thereof; provided, that the encumbrances and restrictions in any such amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings are, in the reasonable good faith judgment of an Officer of the Company, no more restrictive, taken as a whole, than those in effect on the date of the acquisition; provided further, that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be incurred;
(6) contracts for the sale of assets, including customary non-assignment provisions in Hydrocarbon purchase and restrictions with respect to a Subsidiary pursuant to an agreement that has been entered into for the sale or exchange agreements disposition of all or similar operational agreements substantially all of the Capital Stock or in licenses, easements or leases, in each case, entered into in the ordinary course assets of businesssuch Subsidiary;
(7) purchase money obligations for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on the property purchased or leased of the nature described in clause (3) of Section 4.08(a);
(8) any agreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(9) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Secured Indebtedness are, in the reasonable good faith judgment of an Officer of the Company, not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(10) Liens otherwise permitted to be incurred under the provisions of Section pursuant to Sections 4.09 and 4.12 hereof that limit the right of the debtor to dispose of the assets subject to securing such LiensIndebtedness;
(11) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment) entered into with the approval of the Company’s Board of Directors, which limitation is applicable only to the assets that are the subject of such agreements;
(12) encumbrances or restrictions applicable only to a Restricted Subsidiary that is not a Domestic Subsidiary;
(13) encumbrances or 8) restrictions on cash or other deposits or net worth imposed by customers or lessors under contracts or leases entered into in the ordinary course of business;
(149) customary encumbrances and restrictions contained in agreements other Indebtedness, Disqualified Stock or Preferred Stock of Restricted Subsidiaries permitted to be incurred after the types described in the definition of Permitted Business InvestmentsIssue Date pursuant to Section 4.09 hereof;
(1510) customary provisions in joint venture agreements governing Hedging Obligations incurred and other similar agreements;
(11) customary provisions contained in leases and other agreements entered into in the ordinary course of business;
(12) restrictions created in connection with any Receivables Facility; provided that in the case of Receivables Facilities established after the Issue Date, such restrictions are necessary or advisable, in the good faith determination of the Company, to effect such Receivables Facility;
(13) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase or other agreement to which the Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; andprovided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are the subject of such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of any other Restricted Subsidiary;
(1614) any instrument governing any Indebtedness or Capital Stock of a Person that is an Unrestricted Subsidiary as in effect on the date that such Person becomes a Restricted Subsidiary, which encumbrance or restriction with respect is not applicable to an Unrestricted Subsidiary pursuant to any Person, or by reason the properties or assets of an agreement that any Person, other than the Unrestricted Subsidiary is Person who became a party to Restricted Subsidiary, or entered into before the date on which such Unrestricted Subsidiary property or assets of the Person who became a Restricted Subsidiary; provided that that, in the case of Indebtedness, the incurrence of such agreement was not entered into in anticipation Indebtedness as a result of the Unrestricted Subsidiary such Person becoming a Restricted Subsidiary was permitted by the terms of this Indenture; and
(15) any encumbrances or restrictions of the type referred to in Section 4.08(a)(1), (a)(2) and (a)(3) hereof imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in Sections 4.08(b)(1) through (14); provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, not materially more restrictive with respect to such encumbrance and other restrictions than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or restriction does not extend refinancing; provided, further, that with respect to contracts, instruments or obligations existing on the Issue Date, any assets amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or property refinancings are in the good faith judgment of the Company not materially more restrictive with respect to such encumbrances and other restrictions than those contained in such contracts, instruments or any other Restricted Subsidiary other than the assets and property of such Unrestricted Subsidiary. In each case set forth above, notwithstanding any stated limitation obligations as in effect on the assets or property that may be subject to such encumbrance or restriction, an encumbrance or restriction on a specified asset or property or group or type of assets or property may also apply to all improvements, additions, repairs, attachments or accessions thereto, assets and property affixed or appurtenant thereto, parts, replacements and substitutions therefor, and all products and proceeds thereof, including dividends, distributions, interest and increases in respect thereofIssue Date.
Appears in 2 contracts
Sources: Indenture (Harland Clarke Holdings Corp), Indenture (Harland Clarke Holdings Corp)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company Issuer will not, and will not permit any of its Restricted Subsidiaries that are not Guarantors to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary that is not a Guarantor to:
(1) pay dividends or make any other distributions on its Capital Stock to the Company Issuer or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Company Issuer or any of its Restricted Subsidiaries; provided that the priority that any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends, distributions or liquidating distributions before dividends, distributions or liquidating distributions are paid in respect of common stock of such Restricted Subsidiary shall not constitute a restriction on the ability to make dividends or distributions on Capital Stock for purposes of this Section 4.08;
(2) make loans or advances to the Company Issuer or any of its Restricted Subsidiaries (it being understood that the subordination of loans or advances made to the Company or any of its Restricted Subsidiaries to other Indebtedness incurred by the Company or any of its Restricted Subsidiaries shall not be deemed a restriction on the ability to make loans or advances)Subsidiaries; or
(3) sell, lease or transfer any of its properties or assets to the Company Issuer or any of its Restricted Subsidiaries.
(b) The restrictions in Section 4.08(a) hereof will not apply to encumbrances or restrictions existing under or by reason of:
(1) agreements governing Existing Indebtedness and contractual encumbrances or restrictions of the Credit Agreement as Issuer or any of its Restricted Subsidiaries (i) in effect on the date of this Indenture and any amendments, restatements, modifications, renewals, supplements, refundings, replacements Issue Date or refinancings of those agreements; provided that (ii) pursuant to the encumbrances or restrictions contained in the amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are not in the good faith judgment of an Officer of the Company materially more restrictive, taken as a whole, with respect to such dividend New Credit Agreements and other payment restrictions than those contained in those agreements on documents relating to the date of this IndentureNew Credit Agreements, related swap contracts and Indebtedness permitted pursuant to Section 4.09(b)(2);
(2) this Secured Indenture, the Secured Notes, the Secured Note Guarantees (and any Additional Secured Notes and related guarantees), the Unsecured Indenture, the Unsecured Notes and the Unsecured Note GuaranteesGuarantees (and any Additional Unsecured Notes (as defined in the Unsecured Indenture) and related guarantees), the Security Documents and any other documents relating to this Secured Indenture or the Unsecured Indenture;
(3) agreements governing other Indebtedness Indebtedness, Disqualified Stock or preferred stock permitted to be incurred under the provisions of Section 4.09 hereof and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained therein are in the reasonable good faith judgment of an Officer of the Company, either (ai) are not materially more restrictive, taken as a whole, restrictive than those contained in this Indenture, the Notes and the Note Guarantees or the Credit Agreement as agreements governing Indebtedness in effect on the date of this Indenture Issue Date, or (bii) are not reasonably likely materially more disadvantageous to have a material adverse effect on the ability Holders of the Company Secured Notes than is customary in comparable financings (as determined by the Issuer in good faith, which determination shall be conclusive) and in the case of subclause (ii) either (x) the Issuer determines (in good faith) that such encumbrance or restriction will not affect the Issuer’s ability to make required principal or interest payments on the NotesSecured Notes or (y) such encumbrances or restrictions apply only during the continuance of a default in respect of payment or a financial maintenance covenant relating to such Indebtedness;
(4) applicable law, rule, regulation regulation, order, approval, license, permit or ordersimilar restriction;
(5) any instrument governing Indebtedness or Capital Stock of a Person acquired by by, or merged, amalgamated or consolidated with or into, the Company Issuer or any of its Restricted Subsidiaries as in effect at the time of such acquisition or at the time it merges with or into the Issuer or any Restricted Subsidiary (except to the extent such Indebtedness or Capital Stock instrument was incurred entered into in connection with or in contemplation of such acquisitionthereof), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, and any amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements acquired or refinancings thereof; provided, that the encumbrances and restrictions in any such amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings are, in the reasonable good faith judgment of an Officer of the Company, no more restrictive, taken as a whole, than those in effect on the date of the acquisitiondesignated; provided further, that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Secured Indenture to be incurred;
(6) customary non-assignment or sub-letting provisions in Hydrocarbon purchase and sale or exchange agreements or similar operational agreements or in licensescontracts, easements or leases, in each casesub-leases, licenses and sub-licenses entered into in the ordinary course of business;
(7) purchase money obligations for property acquired in the ordinary course of business obligations, mortgage financings and Capital Lease Obligations that impose restrictions on the property purchased or leased of the nature described in clause (3) of Section 4.08(a)) hereof;
(8) contracts for the sale or other disposition of Capital Stock or assets, including any agreement for the sale or other disposition of a Restricted Subsidiary of all or substantially all of the assets of such Restricted Subsidiary in compliance with the terms of this Secured Indenture that restricts distributions by that Restricted Subsidiary pending its such sale or other disposition;
(9) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, in the reasonable good faith judgment of an Officer of the Company, are not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(10) Secured Indebtedness otherwise permitted to be incurred pursuant to Section 4.09 hereof and Liens permitted to be incurred under pursuant to the provisions of Section 4.12 that limit the right of the debtor to dispose of the assets subject to such Lienshereof;
(11) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements agreements, shareholder agreements, limited liability company organizational documents and other similar agreements (including agreements entered into in connection with a Restricted Investment) entered into with the approval of the Company’s Board of DirectorsPermitted Investment or pursuant to Section 4.07 hereof), which limitation is applicable only to the assets that are the subject of such agreements;
(12) encumbrances or restrictions applicable only to a Restricted Subsidiary that is not a Domestic Subsidiary;
(13) encumbrances or restrictions on cash cash, Cash Equivalents or other deposits or net worth imposed by customers or lessors under contracts or leases entered into in the ordinary course of business;
(13) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(14) customary encumbrances Restricted Payments that do not violate the provisions of Section 4.07 hereof and restrictions contained in agreements of the types described in the definition of any Permitted Business InvestmentsInvestment;
(15) agreements governing Hedging Obligations incurred any encumbrance or restriction of a Securitization Entity effected in the ordinary course of businessconnection with a Qualified Securitization Transaction; andprovided, however, that such restrictions apply only to such Securitization Entity;
(16) other Indebtedness, Disqualified Stock or preferred stock of Non-Guarantor Subsidiaries that is incurred or issued subsequent to the Issue Date pursuant to Section 4.09 hereof;
(17) any encumbrance or restriction with respect to an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became a Restricted SubsidiarySubsidiary of the Issuer; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary of the Issuer and any such encumbrance or restriction does not extend to any assets or property of the Company or Issuer of any other Restricted Subsidiary other than the assets and property of such Unrestricted Subsidiary. In each case set forth above, notwithstanding any stated limitation ;
(18) provisions with respect to the receipt of a rebate on the assets an operating lease until all obligations due to a lessor on other operating leases are satisfied or property that may be subject to such encumbrance or restriction, an encumbrance or restriction on a specified asset or property or group or type other customary restrictions in respect of assets or contract rights acquired by a Restricted Subsidiary of the Issuer in connection with a Sale/Leaseback Transaction;
(19) encumbrances and restrictions contained in contracts entered into in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property may also apply or assets of the Issuer or any Restricted Subsidiary of the Issuer or the ability of the Issuer or such Restricted Subsidiary to all improvementsrealize such value, additionsor to make any distributions relating to such property or assets in each case in any material respect; and
(20) any encumbrances or restrictions of the type referred to in Sections 4.08(a)(1), repairs(2) and (3) hereof imposed by any amendments, attachments or accessions theretomodifications, assets and property affixed or appurtenant theretorestatements, partsrenewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (1) through (19) above; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Issuer, not materially more restrictive as a whole with respect to such dividend and substitutions thereforother payment restrictions than those contained in the dividend or other payment restrictions prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing. For purposes of determining compliance with this Section 4.08, (i) the priority of any preferred stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common shares shall not be deemed a restriction on the ability to make distributions on Capital Stock and all products and proceeds thereof, including dividends, distributions, interest and increases in respect thereof(ii) the subordination of loans or advances made to the Issuer or any of its Restricted Subsidiaries to other Indebtedness incurred by the Issuer or any such Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances.
Appears in 2 contracts
Sources: Indenture (McGraw Hill, Inc.), Indenture (McGraw Hill, Inc.)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
to do any of the following: (1a)(i) pay dividends or make any other distributions on its Capital Stock to the Company or any of its Restricted Subsidiaries, Subsidiaries on its Capital Stock or with respect to any other interest or participation in, or measured by, its profits, or (ii) pay any Indebtedness owed to the Company or any of its Restricted Subsidiaries; provided that the priority that any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends, distributions or liquidating distributions before dividends, distributions or liquidating distributions are paid in respect of common stock of such Restricted Subsidiary shall not constitute a restriction on the ability to make dividends or distributions on Capital Stock for purposes of this Section 4.08;
(2b) make loans or advances to the Company or any of its Restricted Subsidiaries or (it being understood that the subordination of loans or advances made to the Company or any of its Restricted Subsidiaries to other Indebtedness incurred by the Company or any of its Restricted Subsidiaries shall not be deemed a restriction on the ability to make loans or advances); or
(3c) sell, lease or transfer any of its properties or assets to the Company or any of its Restricted Subsidiaries.
(b) The restrictions in Section 4.08(a) hereof will not apply to , except for such encumbrances or restrictions existing under or by reason of:
of (1) agreements governing Existing Indebtedness and the Credit Agreement as in effect on the date of this Indenture Facilities, and any amendments, modifications, restatements, modificationsrenewals, renewalsincreases, supplements, refundings, replacements or refinancings of those agreements; thereof, provided that the encumbrances or restrictions contained in the such agreements and amendments, modifications, restatements, modificationsrenewals, renewalsincreases, supplements, refundings, replacements or refinancings are not in materially less favorable to the good faith judgment of an Officer holders of the Company materially more restrictiveNotes, taken as a whole, with respect to such dividend and other payment restrictions than those contained contained, in those agreements on the date case of this Indenture;
(2) this IndentureCredit Facilities, the Notes and the Note Guarantees;
(3) in agreements governing other Indebtedness permitted to be incurred under the provisions of Section 4.09 hereof and any amendmentsCredit Facilities, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained therein are in the reasonable good faith judgment of an Officer of the Company, either (a) not materially more restrictive, taken as a whole, than those contained in this Indenture, the Notes and the Note Guarantees or the Credit Agreement case as in effect on the date of this Indenture or Indenture, (b2) not reasonably likely to have a material adverse effect on the ability of the Company to make required payments on this Indenture, the Notes;
, the Subsidiary Guarantees and the First Lien Notes (3) any agreement for the sale or other disposition of Equity Interests in a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending the sale or other disposition, (4) applicable law, rule, regulation or order;
(5) any instrument governing Indebtedness or Capital Stock of a Person acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness or Capital Stock was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, and any amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings thereof; provided, that the encumbrances and restrictions in any such amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings are, in the reasonable good faith judgment of an Officer of the Company, no more restrictive, taken as a whole, than those in effect on the date of the acquisition; provided further, that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be incurred;
, (5) by reason of customary provisions restricting the subletting or assignment of any lease or the transfer of copyrighted or patented materials, (6) customary non-assignment provisions in Hydrocarbon purchase and sale or exchange agreements or similar operational agreements or in licenses, easements or leases, in each case, entered into in the ordinary course of business;
(7) purchase money obligations for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on the property purchased or leased of the nature described in clause (3c) of Section 4.08(a);
(8) any agreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(9) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, in the reasonable good faith judgment of an Officer of the Company, not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(10) Liens permitted to be incurred under the provisions of Section 4.12 that limit the right of the debtor to dispose of the assets subject to such Liens;
(11) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment) entered into with the approval of the Company’s Board of Directors, which limitation is applicable only to the assets that are the subject of such agreements;
(12) encumbrances or restrictions applicable only to a Restricted Subsidiary that is not a Domestic Subsidiary;
(13) encumbrances or restrictions on cash or other deposits or net worth imposed by customers or lessors under contracts or leases entered into in the ordinary course of business;
(14) customary encumbrances and restrictions contained in agreements of the types described in the definition of Permitted Business Investments;
(15) agreements governing Hedging Obligations incurred in the ordinary course of business; and
(16) any encumbrance or restriction with respect to an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Unrestricted Subsidiary. In each case set forth above, notwithstanding any stated limitation above on the assets or property that may be subject to such encumbrance or restriction, an encumbrance or restriction on a specified asset or property or group or type of assets or property may also apply to all improvements, additions, repairs, attachments or accessions thereto, assets and property affixed or appurtenant thereto, parts, replacements and substitutions therefor, and all products and proceeds thereof, including dividends, distributions, interest and increases in respect thereof.so acquired,
Appears in 2 contracts
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock to the Company or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Company or any of its Restricted Subsidiaries; provided that the priority that any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends, distributions or liquidating distributions before dividends, distributions or liquidating distributions are paid in respect of common stock of such Restricted Subsidiary shall not constitute a restriction on the ability to make dividends or distributions on Capital Stock for purposes of this Section 4.08;
(2) make loans or advances to the Company or any of its Restricted Subsidiaries (it being understood that the subordination of loans or advances made to the Company or any of its Restricted Subsidiaries to other Indebtedness incurred by the Company or any of its Restricted Subsidiaries shall not be deemed a restriction on the ability to make loans or advances)Subsidiaries; or
(3) sell, lease or transfer any of its properties or assets to the Company or any of its Restricted Subsidiaries; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness incurred by the Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) The restrictions in Section 4.08(a) hereof will not apply to encumbrances or restrictions existing under or by reason of:
(1) agreements Agreements governing Existing Indebtedness and the Credit Agreement Facilities as in effect on the date of this Indenture Issue Date (or otherwise required by such agreements in existence on the Issue Date) and after giving effect to any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained in the amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are not in the good faith judgment of an Officer of the Company materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements on the date of this IndentureIssue Date;
(2) this This Indenture, the Notes and the Note Guarantees;
(3) agreements Agreements governing other Indebtedness permitted to be incurred under the provisions of Section 4.09 hereof and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained therein are in the reasonable good faith judgment of an Officer of the Company, either (a) the Company determines (in good faith) that such encumbrance or restriction will not materially more restrictive, taken as a whole, than those contained in this Indenture, affect the Company’s ability to make principal or interest payments on the Notes and the Note Guarantees or the Credit Agreement as in effect on the date of this Indenture or (b) not reasonably likely such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to have a material adverse effect on the ability of the Company to make required payments on the Notessuch agreement or instrument;
(4) applicable Applicable law, rule, regulation or order;
(5) any Any instrument governing Indebtedness or Capital Stock of a Person acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness or Capital Stock instrument was incurred entered into in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, and any amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings thereof; provided, that the encumbrances and restrictions in any such amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings are, in the reasonable good faith judgment of an Officer of the Company, no more restrictive, taken as a whole, than those in effect on the date of the acquisition; provided further, that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be incurred;
(6) customary non-assignment Customary provisions in Hydrocarbon purchase and sale or exchange agreements or similar operational agreements or in licensescontracts, easements or leases, in each case, subleases and licenses entered into in the ordinary course of business;
(7) purchase Purchase money obligations for property acquired in the ordinary course of business obligations, mortgage financings and Capital Lease Obligations that impose restrictions on the property purchased or leased of the nature described in clause (3) of Section 4.08(a)) hereof;
(8) Contracts for the sale of assets, including any agreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions by that or all or substantially all of the assets of the Company or such Restricted Subsidiary in compliance with the terms of this Indenture pending its such sale or other disposition;
(9) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, in the reasonable good faith judgment of an Officer of the Company, are not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(10) Secured Indebtedness otherwise permitted to be incurred pursuant to Section 4.09 hereof and Liens permitted to be incurred under pursuant to the provisions of Section 4.12 hereof, in each case, that limit the right of the debtor to dispose of the assets subject to such Liens;
(11) provisions Provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment) entered into with the approval of the Company’s Board of Directors), which limitation is applicable only to the assets or Persons that are the subject of such agreements;
(12) encumbrances or restrictions applicable only to a Restricted Subsidiary that is not a Domestic Subsidiary;
(13) encumbrances or restrictions Restrictions on cash or other deposits or net worth imposed by customers or lessors under contracts or leases agreements entered into in the ordinary course of business;
(13) Customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(14) customary encumbrances Any Restricted Investment not prohibited by Section 4.07 hereof and restrictions contained in agreements of the types described in the definition of any Permitted Business InvestmentsInvestment;
(15) Customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements governing of the Company or any Restricted Subsidiary;
(16) Hedging Obligations incurred entered into in the ordinary course of businessbusiness and not for speculative purposes;
(17) Any encumbrances or restrictions of the type referred to in Section 4.08(a)(1), (2) and (3) hereof imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (1) through (16) above; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, not materially more restrictive as a whole with respect to such dividend and other payment restrictions than those contained in the dividend or other payment restrictions prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing; and
(1618) any encumbrance or restriction with respect Agreements relating to an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary HUD Financing and any such encumbrance or restriction does not extend to any assets or property amendments of the Company or any other Restricted Subsidiary other than the assets and property of such Unrestricted Subsidiary. In each case set forth above, notwithstanding any stated limitation on the assets or property that may be subject to such encumbrance or restriction, an encumbrance or restriction on a specified asset or property or group or type of assets or property may also apply to all improvements, additions, repairs, attachments or accessions thereto, assets and property affixed or appurtenant thereto, parts, replacements and substitutions therefor, and all products and proceeds thereof, including dividends, distributions, interest and increases in respect thereofthose agreements.
Appears in 2 contracts
Sources: Indenture (Acadia Healthcare Company, Inc.), Indenture (Acadia Healthcare Company, Inc.)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock to the Company or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Company or any of its Restricted Subsidiaries; provided that the priority that any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends, distributions or liquidating distributions before dividends, distributions or liquidating distributions are paid in respect of common stock of such Restricted Subsidiary shall not constitute a restriction on the ability to make dividends or distributions on Capital Stock for purposes of this Section 4.08;
(2) make loans or advances to the Company or any of its Restricted Subsidiaries (it being understood that the subordination of loans or advances made to the Company or any of its Restricted Subsidiaries to other Indebtedness incurred by the Company or any of its Restricted Subsidiaries shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its properties or assets to the Company or any of its Restricted Subsidiaries.
(b) The restrictions in Section 4.08(a) hereof will not apply to encumbrances or restrictions existing under or by reason of:
(1) agreements governing Existing Indebtedness as in effect on the Issue Date and the Credit Agreement as in effect on the date of this Indenture Issue Date, and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained in the amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are not in the good faith judgment of an Officer of the Company materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements on the date of this IndentureIssue Date;
(2) this Indenture, the Notes and the Note Guarantees;
(3) agreements governing other Indebtedness permitted to be incurred under the provisions of Section 4.09 hereof and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained therein are are, in the reasonable good faith judgment of an Officer of the Company, either (a) not materially more restrictive, taken as a whole, than those contained in this Indenture, the Notes and the Note Guarantees with respect to the Notes or the Credit Agreement as in effect on the date of this Indenture Issue Date or (b) not reasonably likely to have a material adverse effect on the ability of the Company to make required payments on the Notes;
(4) applicable law, rule, regulation or order;
(5) any instrument governing Indebtedness or Capital Stock of a Person acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness or Capital Stock was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, and any amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings thereof; provided, provided that the encumbrances and restrictions in any such amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings are, in the reasonable good faith judgment of an Officer of the Company, no more restrictive, taken as a whole, than those in effect on the date of the acquisition; provided further, that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be incurred;
(6) customary non-assignment provisions in Hydrocarbon purchase and sale or exchange agreements or similar operational agreements or in licenses, easements or leases, in each case, entered into in the ordinary course of business;
(7) purchase money obligations for property acquired in the ordinary course of business and Capital Finance Lease Obligations that impose restrictions on the property purchased or leased of the nature described in clause (3) of Section 4.08(a);
(8) any agreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(9) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, in the reasonable good faith judgment of an Officer of the Company, not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(10) Liens permitted to be incurred under the provisions of Section 4.12 that limit the right of the debtor to dispose of the assets subject to such Liens;
(11) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment) entered into with the approval of the Company’s Board of Directors, which limitation is applicable only to the assets that are the subject of such agreements;
(12) encumbrances or restrictions applicable only to a Restricted Subsidiary that is not a Domestic Subsidiary;
(13) encumbrances or restrictions on cash cash, Cash Equivalents or other deposits or net worth imposed by customers or lessors under contracts or leases entered into in the ordinary course of business;
(14) customary encumbrances and restrictions contained in agreements of the types described in the definition of Permitted Business Investments;
(15) agreements governing Hedging Obligations incurred in the ordinary course of business; and;
(16) any encumbrance or restriction with respect to an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Unrestricted Subsidiary;
(17) customary provisions contained in leases, sub-leases, licenses, sub-licenses, Equity Interests or similar agreements, including with respect to intellectual property and other agreements;
(18) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any Restricted Subsidiary is a party entered into in the ordinary course of business or consistent with industry practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of any other Restricted Subsidiary;
(19) customary provisions restricting subletting or assignment of any lease governing a leasehold interest of the Company or any Restricted Subsidiary;
(20) customary provisions restricting assignment of any agreement; and
(21) restrictions arising in connection with cash or other deposits permitted under Section 4.12. In each case set forth above, notwithstanding any stated limitation on the assets or property that may be subject to such encumbrance or restriction, an encumbrance or restriction on a specified asset or property or group or type of assets or property may also apply to all improvements, additions, repairs, attachments or accessions thereto, assets and property affixed or appurtenant thereto, parts, replacements and substitutions therefor, and all products and proceeds thereof, including dividends, distributions, interest and increases in respect thereof.
Appears in 2 contracts
Sources: Indenture (Civitas Resources, Inc.), Indenture (Civitas Resources, Inc.)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock to the Company or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness indebtedness owed to the Company or any of its Restricted Subsidiaries; provided Subsidiaries (it being understood that the priority that of any series of Preferred Stock of a Restricted Subsidiary has preferred stock in receiving dividends, distributions dividends or liquidating distributions before dividends, distributions prior to dividends or liquidating distributions are being paid in respect of on common stock of such Restricted Subsidiary shall not constitute be deemed a restriction on the ability to make dividends or distributions on Capital Stock for purposes of this Section 4.08Stock);
(2) make loans or advances to the Company or any of its Restricted Subsidiaries (it being understood that the subordination of loans or advances made to the Company or any of its Restricted Subsidiaries Subsidiary to other Indebtedness incurred by the Company or any of its Restricted Subsidiaries Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its properties or assets to the Company or any of its Restricted SubsidiariesSubsidiaries (it being understood that such transfers shall not include any type of transfer described in clauses (1) and (2) of this Section 10.9(a)).
(b) The restrictions in Section 4.08(a10.9(a) hereof will not apply to encumbrances or restrictions existing under or by reason of:
(1) agreements governing Existing Indebtedness and the Credit Agreement Facilities as in effect on the date of this Indenture Agreement (including the Senior Credit Facility) and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained in the amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are not refinancings, in the good faith judgment of an Officer of the Company Company, (x) are not materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements on the date of this IndentureAgreement and (y) will not materially affect the Company’s ability to make anticipated principal and interest payments on the Notes when due;
(2) this IndentureAgreement, the Notes and the Note GuaranteesSubsidiary Guaranties;
(3) agreements governing other Indebtedness permitted to be incurred under the provisions of Section 4.09 10.2 hereof and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained therein are in the reasonable good faith judgment of an Officer of the Company, either (a) such encumbrances and restrictions will not materially more restrictive, taken as a whole, than those contained in this Indenture, affect the Notes and the Note Guarantees or the Credit Agreement as in effect on the date of this Indenture or (b) not reasonably likely to have a material adverse effect on the Company’s ability of the Company to make required anticipated principal and interest payments on the NotesNotes when due;
(4) applicable law, rule, regulation or order;
(5) any instrument governing Indebtedness or Capital Stock of a Person acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness or Capital Stock was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, and any amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings thereof; provided, that the encumbrances and restrictions in any such amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings are, in the reasonable good faith judgment of an Officer of the Company, no more restrictive, taken as a whole, than those in effect on the date of the acquisition; provided further, that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture Agreement to be incurred;
(6) customary non-assignment provisions in Hydrocarbon purchase and sale or exchange agreements or similar operational agreements or in licenses, easements or leases, in each casesubleases, licenses and other contracts entered into in the ordinary course of business, including, without limitation, any encumbrance or restriction (a) that restricts the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of such lease, license or other contract; and (b) pursuant to provisions restricting the dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(7) purchase money obligations for property acquired in the ordinary course of business and Attributable Debt or Capital Lease Obligations that impose restrictions on the property purchased or leased of the nature described in clause (3) of Section 4.08(a)10.9(a) hereof;
(8) any agreement for the sale or other disposition of all or a portion of the Capital Stock or assets of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(9) Permitted Refinancing Indebtedness; provided that that, in the good faith judgment of the Company, the encumbrances and restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, in the reasonable good faith judgment of an Officer of the Company, are not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(10) Liens permitted to be incurred under the provisions of Section 4.12 10.3 hereof that limit the right of the debtor to dispose of the assets subject to such Liens, including any Permitted Lien;
(11) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment) entered into with the approval of the Company’s Board of Directors), which limitation is applicable only to the assets that are the subject of such agreements;; and
(12) encumbrances or restrictions applicable only to a Restricted Subsidiary that is not a Domestic Subsidiary;
(13) encumbrances or restrictions on cash or other deposits or net worth imposed by customers or lessors under contracts or leases entered into in the ordinary course of business;
(14) customary encumbrances and restrictions contained in agreements of the types described in the definition of Permitted Business Investments;
(15) agreements governing Hedging Obligations incurred in the ordinary course of business; and
(16) any encumbrance or restriction with respect to an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Unrestricted Subsidiary. In each case set forth above, notwithstanding any stated limitation on the assets or property that may be subject to such encumbrance or restriction, an encumbrance or restriction on a specified asset or property or group or type of assets or property may also apply to all improvements, additions, repairs, attachments or accessions thereto, assets and property affixed or appurtenant thereto, parts, replacements and substitutions therefor, and all products and proceeds thereof, including dividends, distributions, interest and increases in respect thereof.
Appears in 2 contracts
Sources: Note Purchase Agreement (Hecla Mining Co/De/), Note Purchase Agreement (Hecla Mining Co/De/)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company Partnership will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock to the Company Partnership or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Company Partnership or any of its Restricted Subsidiaries; provided that the priority that any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends, distributions dividends or liquidating distributions before dividends, distributions dividends or liquidating distributions are paid in respect of common stock of such Restricted Subsidiary shall not constitute a restriction on the ability to make dividends or distributions on Capital Stock for purposes of this Section 4.08;
(2) make loans or advances to the Company Partnership or any of its Restricted Subsidiaries (it being understood that the subordination of loans or advances made to the Company Partnership or any of its Restricted Subsidiaries Subsidiary to other Indebtedness incurred by the Company Partnership or any of its Restricted Subsidiaries Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its properties or assets to the Company Partnership or any of its Restricted Subsidiaries.
(b) The restrictions in Section 4.08(a) hereof will not apply to encumbrances or restrictions existing under or by reason of:
(1) agreements and instruments (including those governing Existing Indebtedness and the Credit Agreement Facilities) as in effect on the date of this Indenture and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained in the amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are not in the good faith judgment of an Officer of the Company materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements on the date of this Indenture;
(2) this Indenture, the Notes and the Note Guarantees;
(3) agreements governing other Indebtedness permitted to be incurred under the provisions of Section 4.09 hereof and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained therein are in the reasonable good faith judgment of an Officer of the Company, either (a) not materially more restrictive, taken as a whole, than those contained in this Indenture, the Notes and the Note Guarantees or the Credit Agreement as in effect on the date of this Indenture or (b) not reasonably likely to have a material adverse effect on the ability of the Company to make required payments on the NotesGuarantees;
(4) any applicable law, rule, regulation regulation, approval, license, permit or order;
(5) any agreement or instrument governing Indebtedness or Capital Stock of a Person acquired by the Company Partnership or any of its Restricted Subsidiaries (including those governing Indebtedness or Capital Stock) as in effect at the time of such acquisition (except to the extent such Indebtedness or Capital Stock was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, and any amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings thereof; provided, that the encumbrances and restrictions in any such amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings are, in the reasonable good faith judgment of an Officer of the Company, no more restrictive, taken as a whole, than those in effect on the date of the acquisition; provided further, that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be incurred;
(6) customary non-assignment provisions in Hydrocarbon purchase contracts, leases and sale or exchange agreements or similar operational agreements or in licenses, easements or leases, in each case, licenses entered into in the ordinary course of business;
(7) purchase money obligations for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on the property purchased or leased of the nature described in clause (3) of Section 4.08(a)) above;
(8) any agreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(9) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, in the reasonable good faith judgment of an Officer of the Company, are not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(10) Liens permitted to be incurred under the provisions of Section 4.12 hereof that limit the right of the debtor to dispose of the assets subject to such Liens;
(11) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-sale and leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment) entered into with the approval of the CompanyGeneral Partner’s Board of Directors, which limitation is applicable only to the assets that are the subject of such agreements;
(12) encumbrances or restrictions applicable only to a Restricted Subsidiary that is not a Domestic Subsidiary;
(13) encumbrances or restrictions on cash or other deposits or net worth imposed by customers customers, lessors, suppliers, or lessors under contracts or leases entered into required by insurance surety bonding companies, in each case in the ordinary course of business;
(13) in the case of any Foreign Subsidiary, any encumbrance or restriction contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was incurred if either (a) the encumbrance or restriction applies only in the event of a Payment Default or a default with respect to a financial covenant in such Indebtedness or agreement or (b) the Partnership determines that any such encumbrance of restriction will not materially affect the Partnership’s ability to make principal or interest payments on the Notes, as determined in good faith by the Board of Directors of the General Partner, whose determination shall be conclusive;
(14) customary for any purpose not otherwise prohibited by this Indenture, encumbrances and or restrictions contained in agreements of the types type described in Section 4.08(a)(3) above arising or agreed to (i) in the definition ordinary course of Permitted Business Investmentsbusiness that restrict in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license, conveyance or similar contract, including with respect to intellectual property, (ii) that restrict in a customary manner, pursuant to provisions in partnership agreements, limited liability company organizational governance documents, joint venture agreements and other similar agreements, the transfer of ownership interests in, or assets of, such partnership, limited liability company, joint venture or similar Person or (iii) by virtue of any Lien on, or agreement to transfer, option or similar right with respect to any property or assets of, the Partnership or any Restricted Subsidiary;
(15) agreements governing Hedging Obligations incurred in the ordinary course of business; and
(16) any encumbrance encumbrances or restriction restrictions with respect to an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company Partnership or any other Restricted Subsidiary other than the assets and property of such Unrestricted Subsidiary. In each case set forth above, notwithstanding any stated limitation on the ;
(16) customary restrictions in respect of assets or contract rights acquired by a Restricted Subsidiary in connection with a permitted sale and leaseback transaction; or
(17) any agreement or instrument relating to any property that may be subject to or assets acquired after the date of this Indenture, so long as such encumbrance or restriction, an encumbrance or restriction on a specified asset or relates only to the property or group or type assets so acquired and is not and was not created in anticipation of assets or property may also apply to all improvements, additions, repairs, attachments or accessions thereto, assets and property affixed or appurtenant thereto, parts, replacements and substitutions therefor, and all products and proceeds thereof, including dividends, distributions, interest and increases in respect thereofsuch acquisition.
Appears in 2 contracts
Sources: Indenture (SunCoke Energy Partners, L.P.), Indenture (SunCoke Energy Partners, L.P.)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock to the Company or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Company or any of its Restricted Subsidiaries; provided that the priority that any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends, distributions or liquidating distributions before dividends, distributions or liquidating distributions are paid in respect of common stock of such Restricted Subsidiary shall not constitute a restriction on the ability to make dividends or distributions on Capital Stock for purposes of this Section 4.08;
(2) make loans or advances to the Company or any of its Restricted Subsidiaries (it being understood that the subordination of loans or advances made to the Company or any of its Restricted Subsidiaries to other Indebtedness incurred by the Company or any of its Restricted Subsidiaries shall not be deemed a restriction on the ability to make loans or advances)Subsidiaries; or
(3) sell, lease or transfer any of its properties or assets to the Company or any of its Restricted Subsidiaries.
(b) The restrictions in Section 4.08(a) hereof will not apply to encumbrances or restrictions existing under or by reason of:
(1) agreements governing Existing Indebtedness and the Credit Agreement Facilities as in effect on the date of this Indenture Issue Date (or otherwise required by such agreements in existence on the Issue Date) and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained in the amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are not in the good faith judgment of an Officer of the Company materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements on the date of this IndentureIssue Date;
(2) this Indenture, the Notes and the Note GuaranteesGuarantees and any Exchange Notes and related Note Guarantees issued pursuant to the Registration Rights Agreement;
(3) agreements governing other Indebtedness permitted to be incurred under the provisions of Section 4.09 hereof and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained therein are in the reasonable good faith judgment of an Officer of the Company, either (ai) are not materially more restrictive, taken as a whole, restrictive than those contained in this Indenture, the Notes and the Note Guarantees or the Credit Agreement as agreements governing Indebtedness in effect on the date of this Indenture Issue Date, or (bii) are not reasonably likely materially more disadvantageous to have a material adverse effect on the ability Holders of the Notes than is customary in comparable financings (as determined by the Company in good faith) and in the case of (ii) either (x) the Company determines (in good faith) that such encumbrance or restriction will not affect the Company’s ability to make required principal or interest payments on the NotesNotes or (y) such encumbrances or restrictions apply only during the continuance of a Default in respect of payment or a financial maintenance covenant relating to such Indebtedness;
(4) applicable law, rule, regulation or order;
(5) any instrument governing Indebtedness or Capital Stock of a Person acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness or Capital Stock instrument was incurred entered into in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, and any amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings thereof; provided, that the encumbrances and restrictions in any such amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings are, in the reasonable good faith judgment of an Officer of the Company, no more restrictive, taken as a whole, than those in effect on the date of the acquisition; provided further, that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be incurred;
(6) customary non-assignment provisions in Hydrocarbon purchase and sale or exchange agreements or similar operational agreements or in licensescontracts, easements or leases, in each case, subleases and licenses entered into in the ordinary course of business;
(7) purchase money obligations for property acquired in the ordinary course of business obligations, mortgage financings and Capital Lease Obligations that impose restrictions on the property purchased or leased of the nature described in clause (3) of Section 4.08(a)) hereof;
(8) contracts for the sale of assets, including any agreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions by that or all or substantially all of the assets of such Restricted Subsidiary in compliance with the terms of this Indenture pending its such sale or other disposition;
(9) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, in the reasonable good faith judgment of an Officer of the Company, are not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(10) Secured Indebtedness otherwise permitted to be incurred pursuant to Section 4.09 hereof and Liens permitted to be incurred under pursuant to the provisions of Section 4.12 hereof, in each case, that limit the right of the debtor to dispose of the assets subject to such Liens;
(11) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment) entered into with the approval of the Company’s Board of Directors), which limitation is applicable only to the assets or Persons that are the subject of such agreements;
(12) encumbrances or restrictions applicable only to a Restricted Subsidiary that is not a Domestic Subsidiary;
(13) encumbrances or restrictions on cash or other deposits or net worth imposed by customers or lessors under contracts or leases agreements entered into in the ordinary course of business;
(13) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(14) customary encumbrances any Restricted Investment not prohibited by Section 4.07 hereof and restrictions contained in agreements of the types described in the definition of any Permitted Business InvestmentsInvestment;
(15) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements governing of the Company or any Restricted Subsidiary;
(16) Hedging Obligations incurred entered into in the ordinary course of businessbusiness and not for speculative purposes;
(17) any encumbrances or restrictions of the type referred to in Section 4.08(a)(1), (2) and (3) hereof imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (1) through (16) above; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, not materially more restrictive as a whole with respect to such dividend and other payment restrictions than those contained in the dividend or other payment restrictions prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing; and
(1618) any encumbrance or restriction with respect agreements relating to an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary HUD Financing and any such encumbrance or restriction does not extend to any assets or property amendments of the Company or any other Restricted Subsidiary other than the assets and property of such Unrestricted Subsidiary. In each case set forth above, notwithstanding any stated limitation on the assets or property that may be subject to such encumbrance or restriction, an encumbrance or restriction on a specified asset or property or group or type of assets or property may also apply to all improvements, additions, repairs, attachments or accessions thereto, assets and property affixed or appurtenant thereto, parts, replacements and substitutions therefor, and all products and proceeds thereof, including dividends, distributions, interest and increases in respect thereofthose agreements.
Appears in 2 contracts
Sources: Indenture (Acadia Healthcare Company, Inc.), Indenture (Acadia Healthcare Company, Inc.)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company will Borrower shall not, and will shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1i) pay dividends or make any other distributions on its Capital Stock to the Company Borrower or any of its Restricted Subsidiaries, Subsidiaries (it being understood that the priority of any preferred stock in receiving dividends or with respect liquidating distributions prior to any other interest dividends or participation in, or measured by, its profits, liquidating distributions being paid on common stock shall not be deemed a restriction on the ability to make distributions on Capital Stock) or pay any Indebtedness owed to the Company Borrower or any of its Restricted Subsidiaries; provided that the priority that any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends, distributions or liquidating distributions before dividends, distributions or liquidating distributions are paid in respect of common stock of such Restricted Subsidiary shall not constitute a restriction on the ability to make dividends or distributions on Capital Stock for purposes of this Section 4.08;
(2ii) make loans or advances to the Company Borrower or any of its Restricted Subsidiaries (it being understood that the subordination of loans or advances made to the Company Borrower or any of its Restricted Subsidiaries to other Indebtedness incurred by the Company Borrower or any of its Restricted Subsidiaries shall not be deemed a restriction on the ability to make loans or advances); or
(3iii) sell, lease or transfer any of its properties or assets to the Company Borrower or any of its Restricted Subsidiaries.
(b) The preceding restrictions in Section 4.08(a) hereof will not apply to encumbrances or restrictions existing under or by reason of:
(1i) agreements governing Existing Indebtedness and the Credit Agreement as in effect on the date of this Effective Date (including the 15% Notes Indenture and the Exchangeable Notes Indenture) and any amendments, modifications, restatements, modificationsrenewals, renewalsincreases, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained in the amendments, modifications, restatements, modificationsrenewals, renewalsincreases, supplements, refundings, replacements or refinancings are not no more restrictive in the good faith judgment of an Officer of the Company materially more restrictiveany material respect, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements on the date of this IndentureEffective Date;
(2ii) this Indenture, the Notes Agreement and the Note Guaranteesother Loan Documents;
(3iii) agreements governing other Indebtedness permitted to be incurred under the provisions of Section 4.09 hereof and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained therein are in the reasonable good faith judgment of an Officer of the Company, either (a) not materially more restrictive, taken as a whole, than those contained in this Indenture, the Notes and the Note Guarantees or the Credit Agreement as in effect on the date of this Indenture or (b) not reasonably likely to have a material adverse effect on the ability of the Company to make required payments on the NotesTransfer Agreements;
(4iv) applicable law, law or any applicable rule, regulation or order;
(5v) any instrument governing government Indebtedness or Capital Stock of a Person acquired by the Company Borrower or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness or Capital Stock was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, and including any amendments, modifications, restatements, modifications, renewals, extensionsincreases, supplements, increases, refundings, replacements or refinancings thereofof any such agreements or instruments; provided, provided that the encumbrances and restrictions in any such amendments, modifications, restatements, modifications, renewals, extensionsincreases, supplements, increases, refundings, replacements or refinancings are, in the reasonable good faith judgment of an Officer of the Company, are no more restrictiverestrictive in any material respect, taken as a whole, than those contained in effect on the date of the acquisitionagreements governing such original agreement or instrument; provided provided, further, that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be incurredSection 6.01;
(6vi) customary non-assignment provisions in Hydrocarbon purchase and sale or exchange agreements the case of Section 6.07(a)(iii):
(A) a lease, license or similar operational contract that restricts in a customary manner the subletting, assignment or transfer of any subject property or asset, or the assignment or transfer of any such lease, license or other contract;
(B) mortgages, pledges or other security agreements otherwise permitted under this Agreement securing Indebtedness of the Borrower or in licensesany of its Restricted Subsidiaries to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, easements pledges or leases, in each case, other security agreements; or
(C) reciprocal easement agreements of the Borrower or any of its Restricted Subsidiaries containing customary provisions restricting dispositions of the subject real property interests;
(vii) leases and other agreements containing net worth provisions entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business;
(7viii) purchase money obligations Purchase Money Indebtedness for property acquired in the ordinary course of business and Capital Lease Obligations that permitted under this Agreement that, in each case, impose restrictions on the property purchased or leased of the nature described in clause (3) of Section 4.08(a6.07(a)(iii);
(8) ix) any agreement for the sale or other disposition of assets or Capital Stock of a Restricted Subsidiary permitted under this Agreement that restricts the sale of assets, distributions or loans by that Restricted Subsidiary pending its sale or other disposition;
(9x) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, are no more restrictive in the reasonable good faith judgment of an Officer of the Company, not materially more restrictiveany material respect, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(10xi) Liens securing Indebtedness otherwise permitted to be incurred under the provisions of Section 4.12 15% Notes Indenture that limit the right of the debtor to dispose of the assets subject to such Liens;
(11xii) provisions limiting with respect to the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment) entered into with the approval ordinary course of the Company’s Board of Directors, which limitation is applicable business; provided that such restrictions apply only to the assets that are the or property subject of to such agreements;
(12xiii) any agreement or instrument entered into after the Effective Date; provided that the encumbrances or restrictions applicable only to in such agreement or instrument are not materially more restrictive, taken as a Restricted Subsidiary that is not a Domestic Subsidiary;whole, than those contained in this Agreement or the other Loan Documents; and
(13xiv) encumbrances or restrictions on cash or other deposits or net worth imposed by customers or lessors under contracts or leases entered into in the ordinary course of business;
(14) customary encumbrances and restrictions contained in agreements of the types described in the definition of Permitted Business Investments;
(15) agreements governing Hedging Obligations incurred in the ordinary course of business; and
(16) any encumbrance or restriction with respect to an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Unrestricted Subsidiary. In each case set forth above, notwithstanding any stated limitation on the assets or property that may be subject to such encumbrance or restriction, an encumbrance or restriction on a specified asset or property or group or type of assets or property may also apply to all improvements, additions, repairs, attachments or accessions thereto, assets and property affixed or appurtenant thereto, parts, replacements and substitutions therefor, and all products and proceeds thereof, including dividends, distributions, interest and increases in respect thereof.
Appears in 2 contracts
Sources: Purchase Money Credit Agreement (Terrestar Corp), Purchase Money Credit Agreement (Harbinger Capital Partners Master Fund I, Ltd.)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company will not, and will not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock to the Company or any of its Restricted SubsidiariesSubsidiary, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Company or any of its Restricted Subsidiaries; provided that the priority that any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends, distributions or liquidating distributions before dividends, distributions or liquidating distributions are paid in respect of common stock of such Restricted Subsidiary shall not constitute a restriction on the ability to make dividends or distributions on Capital Stock for purposes of this Section 4.08Subsidiary;
(2) make loans or advances to the Company or any of its Restricted Subsidiaries (it being understood that the subordination of loans or advances made to the Company or any of its Restricted Subsidiaries to other Indebtedness incurred by the Company or any of its Restricted Subsidiaries shall not be deemed a restriction on the ability to make loans or advances)Subsidiary; or
(3) sell, lease or transfer any of its properties or assets to the Company or any Restricted Subsidiary, provided that (x) the priority of its any preferred stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill period to) loans or advances made to the Company or any Restricted SubsidiariesSubsidiary to other Indebtedness incurred by the Company or any Restricted Subsidiary, shall not be deemed to constitute such an encumbrance or restriction.
(b) The restrictions in Section 4.08(a) hereof will not apply to encumbrances or restrictions existing under or by reason of:
(1) agreements governing Indebtedness (including Existing Indebtedness Indebtedness), charter documents and the Credit Agreement shareholder agreement as in effect on the date of this Indenture Issue Date and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained in the amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are not in materially less favorable to the good faith judgment of an Officer Holders of the Company materially more restrictiveNotes, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements on the date of this IndentureIssue Date (as determined in good faith by the Company);
(2) this Indenture, the Notes Notes, the Note Guarantees and the Note GuaranteesSecurity Documents;
(3) agreements governing other Indebtedness permitted to be incurred under the provisions of Section 4.09 hereof and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the restrictions therein are not materially less favorable to the Holders of the Notes than is customary in comparable financings (as determined in good faith by the Company) and the Company determines at the time of the incurrence of such Indebtedness that such encumbrances or restrictions contained therein are will not adversely effect, in the reasonable good faith judgment of an Officer of any material respect, the Company, either (a) not materially more restrictive, taken as a whole, than those contained in this Indenture, the Notes and the Note Guarantees or the Credit Agreement as in effect on the date of this Indenture or (b) not reasonably likely to have a material adverse effect on the ’s ability of the Company to make required principal or interest payments on the Notes;
(4) applicable law, rule, regulation or orderorder or the terms of any license, authorization, concession or permit;
(5) any instrument governing Indebtedness or Capital Stock of a Person acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness or Capital Stock was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, and any amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings thereof; provided, that the encumbrances and restrictions in any such amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings are, in the reasonable good faith judgment of an Officer of the Company, no more restrictive, taken as a whole, than those in effect on the date of the acquisition; provided further, that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be incurred;
(6) customary non-assignment and similar provisions in Hydrocarbon purchase contracts, leases and sale or exchange agreements or similar operational agreements or in licenses, easements or leases, in each case, licenses entered into in the ordinary course of business;
(7) purchase money obligations for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on the property purchased or leased of the nature described in clause (3Section 4.08(a)(3) of Section 4.08(a)hereof;
(8) any agreement for the sale or other disposition of the Capital Stock or all or substantially all of the property and assets of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(9) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, in the reasonable good faith judgment of an Officer of the Company, are not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(10) Liens permitted to be incurred under the provisions of Section 4.12 hereof that limit the right of the debtor to dispose of the assets subject to such Liens;
(11) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment) entered into with the approval of the Company’s Board of Directors, which limitation is applicable only to the assets that are the subject of such agreements;
(12) encumbrances or restrictions applicable only to a Restricted Subsidiary that is not a Domestic Subsidiary;
(13) encumbrances or restrictions on cash or other deposits or net worth imposed by customers or lessors suppliers or required by insurance, surety or bonding companies, in each case, under contracts or leases entered into in the ordinary course of business;
(1413) any customary encumbrances Productive Asset Leases for Vessels and restrictions contained in agreements of the types described in the definition of Permitted Business Investments;
(15) agreements governing Hedging Obligations incurred other assets used in the ordinary course of business; andprovided that such encumbrance or restriction only extends to the Vessel or other asset financed in such Productive Asset Lease;
(1614) any Restricted Investment not prohibited by Section 4.07 hereof and any Permitted Investment;
(15) any encumbrance or restriction existing with respect to an any Unrestricted Subsidiary pursuant to or by reason the property or assets of an agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became that is designated as a Restricted Subsidiary in accordance with the terms of this Indenture at the time of such designation and not incurred in contemplation of such designation, which encumbrances or restrictions are not applicable to any Person other than such Unrestricted Subsidiary or the property or assets of such Unrestricted Subsidiary; provided that the encumbrances or restrictions are customary for the business of such agreement was not entered into Unrestricted Subsidiary and would not, at the time agreed to, be expected (as determined in anticipation good faith by the Company) to affect the ability of the Unrestricted Subsidiary becoming a Restricted Subsidiary Issuer and the Guarantors to make payments under the Notes and this Indenture;
(16) customary encumbrances or restrictions contained in agreements in connection with Hedging Obligations permitted under this Indenture; and
(17) any such encumbrance or restriction does not extend existing under any agreement that extends, renews, refinances, replaces, amends, modifies, restates or supplements the agreements containing the encumbrances or restrictions in Section 4.08(b)(1) through Section 4.08(b)(16) hereof, or in this Section 4.08(b)(17); provided that the terms and conditions of any such encumbrances or restrictions are no more restrictive in any material respect than those under or pursuant to any assets the agreement so extended, renewed, refinanced, replaced, amended, modified, restated or property of the Company or any other Restricted Subsidiary other than the assets and property of such Unrestricted Subsidiary. In each case set forth above, notwithstanding any stated limitation on the assets or property that may be subject to such encumbrance or restriction, an encumbrance or restriction on a specified asset or property or group or type of assets or property may also apply to all improvements, additions, repairs, attachments or accessions thereto, assets and property affixed or appurtenant thereto, parts, replacements and substitutions therefor, and all products and proceeds thereof, including dividends, distributions, interest and increases in respect thereofsupplemented.
Appears in 2 contracts
Sources: Indenture (Viking Holdings LTD), Indenture (Viking Holdings LTD)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company Parent will not, and will not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1i) pay dividends or make any other distributions on its Capital Stock to the Company Parent or any of its Restricted SubsidiariesSubsidiary, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Company Parent or any of its Restricted Subsidiaries; provided that the priority that any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends, distributions or liquidating distributions before dividends, distributions or liquidating distributions are paid in respect of common stock of such Restricted Subsidiary shall not constitute a restriction on the ability to make dividends or distributions on Capital Stock for purposes of this Section 4.08Subsidiary;
(2ii) make loans or advances to the Company Parent or any of its Restricted Subsidiaries (it being understood that the subordination of loans or advances made to the Company or any of its Restricted Subsidiaries to other Indebtedness incurred by the Company or any of its Restricted Subsidiaries shall not be deemed a restriction on the ability to make loans or advances)Subsidiary; or
(3iii) sell, lease or transfer any of its properties or assets to the Company Parent or any Restricted Subsidiary, provided that (x) the priority of its any preferred stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill period to) loans or advances made to the Parent or any Restricted SubsidiariesSubsidiary to other Indebtedness incurred by the Parent or any Restricted Subsidiary, shall not be deemed to constitute such an encumbrance or restriction.
(b) The However, the preceding restrictions in Section 4.08(a) hereof will not apply to encumbrances or restrictions existing under or by reason of:
(1i) agreements governing Existing Indebtedness and the Credit Agreement Facilities as in effect on the date of this Indenture Issue Date and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained in the amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are not in the good faith judgment of an Officer of the Company materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements on the date of this IndentureIssue Date;
(2ii) this Indenture, the Notes and the Note Guarantees, the Revolving Credit Facility, the OeKB Facility, the Bank Austria Facility, the Vendor Loan Notes, the Intercreditor Agreement and the Collateral Documents;
(3iii) agreements governing other Indebtedness permitted to be incurred under the provisions of Section 4.09 hereof and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the restrictions therein are not materially less favorable to the holders of the Notes than is customary in comparable financings (as determined in good faith by the Parent) and the Parent determines at the time of the incurrence of such Indebtedness that such encumbrances or restrictions contained therein are will not adversely affect, in the reasonable good faith judgment of an Officer of the Company, either (a) not materially more restrictive, taken as a whole, than those contained in this Indentureany material respect, the Notes and the Note Guarantees or the Credit Agreement as in effect on the date of this Indenture or (b) not reasonably likely to have a material adverse effect on the Issuer’s ability of the Company to make required principal or interest payments on the Notes;
(4iv) applicable law, rule, regulation or orderorder or the terms of any license, authorization, concession or permit;
(5v) any instrument governing Indebtedness or Capital Stock of a Person acquired by the Company Parent or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness or Capital Stock was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, and any amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings thereof; provided, that the encumbrances and restrictions in any such amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings are, in the reasonable good faith judgment of an Officer of the Company, no more restrictive, taken as a whole, than those in effect on the date of the acquisition; provided further, that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be incurred;
(6vi) customary non-assignment and similar provisions in Hydrocarbon purchase contracts, leases and sale or exchange agreements or similar operational agreements or in licenses, easements or leases, in each case, licenses entered into in the ordinary course of business;
(7vii) purchase money obligations for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on the property purchased or leased of the nature described in clause (3) of Section 4.08(a4.08(a)(iii);
(8) viii) any agreement for the sale or other disposition of the Capital Stock or all or substantially all of the property and assets of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(9ix) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, in the reasonable good faith judgment of an Officer of the Company, are not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(10x) Liens permitted to be incurred under the provisions of Section 4.12 that limit the right of the debtor to dispose of the assets subject to such Liens;
(11xi) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment) entered into with the approval of the Company’s Board of Directors), which limitation is applicable only to the assets that are the subject of such agreements;
(12xii) encumbrances or restrictions applicable only to a Restricted Subsidiary that is not a Domestic Subsidiary;
(13) encumbrances or restrictions on cash or other deposits or net worth imposed by customers or lessors suppliers or required by insurance, surety or bonding companies, in each case, under contracts or leases entered into in the ordinary course of business;
(14) customary encumbrances and restrictions contained in agreements of the types described in the definition of Permitted Business Investments;
(15) agreements governing Hedging Obligations incurred in the ordinary course of business; and
(16xiii) any encumbrance or restriction of a Securitization Subsidiary effected in connection with respect a Qualified Securitization Financing; provided, however, that such restrictions apply only to an Unrestricted Subsidiary pursuant to such Securitization Subsidiary; and
(xiv) any encumbrance or by reason of an restriction existing under any agreement that extends, renews, refinances or replaces the Unrestricted Subsidiary is a party to agreements containing the encumbrances or entered into before restrictions in the date on which such Unrestricted Subsidiary became a Restricted Subsidiaryforegoing Section 4.08(b)(i)– (xiii), or in this clause (xiv); provided that such agreement was not entered into in anticipation the terms and conditions of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance encumbrances or restriction does not extend restrictions are no more restrictive in any material respect than those under or pursuant to any assets the agreement so extended, renewed, refinanced or property of the Company or any other Restricted Subsidiary other than the assets and property of such Unrestricted Subsidiary. In each case set forth above, notwithstanding any stated limitation on the assets or property that may be subject to such encumbrance or restriction, an encumbrance or restriction on a specified asset or property or group or type of assets or property may also apply to all improvements, additions, repairs, attachments or accessions thereto, assets and property affixed or appurtenant thereto, parts, replacements and substitutions therefor, and all products and proceeds thereof, including dividends, distributions, interest and increases in respect thereofreplaced.
Appears in 2 contracts
Sources: Indenture (Sappi LTD), Indenture (Sappi LTD)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company will Issuer shall not, and will shall not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1i) pay dividends or make any other distributions on its Capital Stock to the Company Issuer or any of its Restricted SubsidiariesSubsidiary, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Company Issuer or any of its Restricted Subsidiaries; provided that the priority that any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends, distributions or liquidating distributions before dividends, distributions or liquidating distributions are paid in respect of common stock of such Restricted Subsidiary shall not constitute a restriction on the ability to make dividends or distributions on Capital Stock for purposes of this Section 4.08Subsidiary;
(2ii) make loans or advances to the Company Issuer or any of its Restricted Subsidiaries (it being understood that the subordination of loans or advances made to the Company or any of its Restricted Subsidiaries to other Indebtedness incurred by the Company or any of its Restricted Subsidiaries shall not be deemed a restriction on the ability to make loans or advances)Subsidiary; or
(3iii) sell, lease or transfer any of its properties or assets to the Company Issuer or any Restricted Subsidiary; provided that (x) the priority of its any preferred stock or preference shares in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock or ordinary shares, (y) the subordination of (including the application of any standstill period to) loans or advances made to the Issuer or any Restricted SubsidiariesSubsidiary to other Indebtedness incurred by the Issuer or any Restricted Subsidiary and (z) the provisions contained in documentation governing or relating to Indebtedness requiring transactions between or among the Issuer and any Restricted Subsidiary or between or among any Restricted Subsidiaries to be on fair and reasonable terms or on an arm’s-length basis, in each case, shall not be deemed to constitute such an encumbrance or restriction.
(b) The restrictions in Section 4.08(aprovisions of Section 4.16(a) hereof will above shall not apply to encumbrances or restrictions existing under or by reason of:
(1i) agreements or instruments governing or relating to Existing Indebtedness (including pursuant to the ARCA, the Existing Notes, the ECA Facilities and the Credit Agreement as in effect on Liquidity Facility and the date related documentation, and including certain perpetual licenses (and any sublicenses thereunder) with respect to certain intellectual property granted by certain subsidiaries of this Indenture the Issuer to the Issuer) and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained in the amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are not in the good faith judgment of an Officer of the Company materially more restrictiveless favorable, taken as a whole, to the Holder with respect to such dividend and other payment restrictions than those contained in those agreements or instruments on the date of this IndentureIssue Date (as determined in good faith by the Issuer);
(2ii) this Indenture, the Notes and the Note GuaranteesDocuments;
(3iii) agreements or instruments governing or relating to other Indebtedness permitted to be incurred under the provisions of Section 4.09 hereof Section 4.06 and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the Issuer determines at the time of the incurrence of such Indebtedness that such encumbrances or restrictions contained therein are will not adversely affect, in the reasonable good faith judgment of an Officer of the Company, either (a) not materially more restrictive, taken as a whole, than those contained in this Indentureany material respect, the Notes and the Note Guarantees or the Credit Agreement as in effect on the date of this Indenture or (b) not reasonably likely to have a material adverse effect on the Issuer’s ability of the Company to make required principal or interest payments on the Notes;
(4iv) applicable law, rule, regulation or orderorder or the terms of any license, authorization, concession or permit;
(5v) any agreement or instrument governing or relating to Indebtedness or Capital Stock of a Person acquired by the Company Issuer or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness other than any agreement or Capital Stock was incurred instrument entered into in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, and any amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings thereof; provided, that the encumbrances and restrictions in any such amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings are, in the reasonable good faith judgment of an Officer of the Company, no more restrictive, taken as a whole, than those in effect on the date of the acquisition; provided further, that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be incurred;
(6vi) customary non-assignment and similar provisions in Hydrocarbon purchase contracts, leases and sale or exchange agreements or similar operational agreements or in licenses, easements or leases, in each case, licenses entered into in the ordinary course of business;
(7vii) purchase money obligations for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on the property purchased or leased of the nature described set forth in clause (3Section 4.16(a)(iii) or any encumbrance or restriction pursuant to a joint venture agreement that imposes restrictions on the transfer of Section 4.08(a)the assets of the joint venture;
(8) viii) any agreement for the sale or other disposition of the Capital Stock or all or substantially all of the property and assets of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(9ix) Permitted Refinancing Indebtedness; provided that either (i) the restrictions contained in the agreements or instruments governing such Permitted Refinancing Indebtedness are, in the reasonable good faith judgment of an Officer of the Company, are not materially more restrictive, taken as a whole, than those contained in the agreements or instruments governing the Indebtedness being refinancedrefinanced or (ii) the Issuer determines at the time of the incurrence of such Indebtedness that such encumbrances or restrictions will not adversely effect, in any material respect, the Issuer’s ability to make principal or interest payments on the Notes;
(10x) Liens permitted to be incurred under the provisions of Section 4.12 Section 4.07 that limit the right of the debtor to dispose of the assets subject to such Liens;
(11xi) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment or Permitted Investment) entered into with the approval of the CompanyIssuer’s Board of Directors, which limitation is applicable only to the assets that are the subject of such agreements;
(12xii) encumbrances or restrictions applicable only to a Restricted Subsidiary that is not a Domestic Subsidiary;
(13) encumbrances or restrictions on cash or other deposits or net worth imposed by customers or lessors suppliers or required by insurance, surety or bonding companies, in each case, under contracts or leases entered into in the ordinary course of business;
(14xiii) any customary encumbrances Productive Asset Leases for Vessels and restrictions contained in agreements of the types described in the definition of Permitted Business Investments;
(15) agreements governing Hedging Obligations incurred other assets used in the ordinary course of business; andprovided that such encumbrance or restriction only extends to the Vessel or other asset financed in such Productive Asset Lease;
(16xiv) any encumbrance or restriction existing with respect to an any Unrestricted Subsidiary pursuant to or by reason the property or assets of an agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became that is designated as a Restricted Subsidiary in accordance with the terms of this Indenture at the time of such designation and not incurred in contemplation of such designation, which encumbrances or restrictions are not applicable to any Person other than such Unrestricted Subsidiary or the property or assets of such Unrestricted Subsidiary; provided that the encumbrances or restrictions are customary for the business of such agreement was not entered into in anticipation Unrestricted Subsidiary and would not, at the time agreed to, be expected to affect the ability of the Unrestricted Subsidiary becoming a Restricted Subsidiary Issuer and the Guarantors to make payments under the Notes, the Note Guarantees and this Indenture, as the case may be;
(xv) customary encumbrances or restrictions contained in agreements in connection with Hedging Obligations permitted under this Indenture;
(xvi) [reserved]; and
(xvii) any such encumbrance or restriction does not extend existing under any agreement that extends, renews, refinances, replaces, amends, modifies, restates or supplements the agreements containing the encumbrances or restrictions in the foregoing clauses (i) through (xvi), or in this clause (xvii); provided that the terms and conditions of any such encumbrances or restrictions are no more restrictive in any material respect than those under or pursuant to any assets the agreement so extended, renewed, refinanced, replaced, amended, modified, restated or property of the Company or any other Restricted Subsidiary other than the assets and property of such Unrestricted Subsidiary. In each case set forth above, notwithstanding any stated limitation on the assets or property that may be subject to such encumbrance or restriction, an encumbrance or restriction on a specified asset or property or group or type of assets or property may also apply to all improvements, additions, repairs, attachments or accessions thereto, assets and property affixed or appurtenant thereto, parts, replacements and substitutions therefor, and all products and proceeds thereof, including dividends, distributions, interest and increases in respect thereofsupplemented.
Appears in 2 contracts
Sources: Indenture (Norwegian Cruise Line Holdings Ltd.), Indenture (Norwegian Cruise Line Holdings Ltd.)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company Issuers will not, and will not permit any of its their Restricted Subsidiaries to, directly or indirectly, create or permit otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(1i) pay dividends or make any other distributions on to either Issuer or any of their Restricted Subsidiaries with respect to its Capital Stock to the Company or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or ;
(ii) pay any Indebtedness owed to the Company Issuers or any of its their Restricted Subsidiaries; provided that the priority that any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends, distributions or liquidating distributions before dividends, distributions or liquidating distributions are paid in respect of common stock of such Restricted Subsidiary shall not constitute a restriction on the ability to make dividends or distributions on Capital Stock for purposes of this Section 4.08;
(2iii) make any loans or advances to the Company Issuers or any of its their Restricted Subsidiaries (it being understood that the subordination of loans or advances made to the Company or any of its Restricted Subsidiaries to other Indebtedness incurred by the Company or any of its Restricted Subsidiaries shall not be deemed a restriction on the ability to make loans or advances)Subsidiaries; or
(3iv) sell, lease or transfer any of its properties or assets to the Company Issuers or any of its their Restricted Subsidiaries.
(b) The restrictions in Section 4.08(aprovisions of paragraph (a) hereof will do not apply to any encumbrances or restrictions existing under or by reason of:
(1) (A) any agreements in effect on the Issue Date (including agreements governing Existing existing Indebtedness and the Credit Agreement as in effect on the date of this Indenture Issue Date), and any amendments, modifications, restatements, modificationsrenewals, renewalsincreases, supplements, refundings, replacements or refinancings of those agreementsthereof; provided that the encumbrances or restrictions contained in the such amendments, modifications, restatements, modificationsrenewals, renewalsincreases, supplements, refundings, replacements or refinancings are not in the good faith judgment of an Officer of the Company materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those the agreements governing such Indebtedness as in effect on the date Issue Date; and (B) provisions in agreements governing secured Indebtedness permitted by this Indenture (including without limitation any Permitted Inventory Facility, Permitted Term Receivables Facility, Permitted Securitization, Permitted Warehouse Facility, Permitted Credit Facility or Permitted Residual Funding Facility) that limit the right of this Indenturethe debtor thereunder to dispose of the assets securing such Indebtedness;
(2) this Indenture, the Notes and the Note GuaranteesIndenture Documents;
(3) agreements governing other Indebtedness permitted to be incurred under the provisions of Section 4.09 hereof applicable law and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained therein are in the reasonable good faith judgment of an Officer of the Company, either (a) not materially more restrictive, taken as a whole, than those contained in this Indenture, the Notes and the Note Guarantees or the Credit Agreement as in effect on the date of this Indenture or (b) not reasonably likely to have a material adverse effect on the ability of the Company to make required payments on the Notes;
(4) applicable law, rule, regulation or order;
(4) customary non-assignment provisions in leases, licenses or other agreements entered into in the ordinary course of business;
(5) purchase money obligations for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on property purchased or leased of the nature described in clause (iv) of subsection (a) above on the property so acquired;
(6) any instrument governing Indebtedness agreement for the sale or other disposition of all or substantially all of the Capital Stock or assets of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition thereof;
(7) any agreement or other instrument of a Person acquired by the Company Issuers or any of its Restricted Subsidiaries as Subsidiary in effect existence at the time of such acquisition (except to the extent such Indebtedness or Capital Stock was incurred in connection with or but not created in contemplation of such acquisitionthereof), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the PersonPerson and its Subsidiaries, or the property or assets of the PersonPerson and its Subsidiaries, so acquired, and any amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings thereof; provided, that the encumbrances and restrictions in any such amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings are, in the reasonable good faith judgment of an Officer of the Company, no more restrictive, taken as a whole, than those in effect on the date of the acquisition; provided further, that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be incurred;
(68) Liens that limit the right of Issuers or any of their Subsidiaries to dispose of the asset or assets subject to such Lien;
(9) customary non-assignment provisions limiting the disposition or distribution of assets or property in Hydrocarbon purchase partnership, joint venture, asset sale agreements, stock sale agreements and sale or exchange other similar agreements or similar operational agreements or in licenses, easements or leases, in each case, entered into in the ordinary course of business, which limitation is applicable only to the assets that are the subject of such agreements;
(710) purchase money obligations for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on the property purchased or leased of the nature described in clause (3) of Section 4.08(a);
(8) any agreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(9) agreements governing Permitted Refinancing Indebtedness; Debt, provided that the such restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, in the reasonable good faith judgment of an Officer of the Company, are not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(1011) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(12) the requirements of any Indebtedness applicable to any Special Purpose Subsidiary formed or used for any Permitted Securitization, Permitted Warehouse Facility, Permitted Residual Funding Facility or Permitted Term Receivables Facility and any Permitted Recourse Obligations with respect thereto;
(13) Liens permitted to be incurred under the provisions of Section 4.12 4.06 that limit the right of the debtor to dispose of the assets subject to such Liens;
(1114) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements agreements, licenses, sublicenses, leases, subleases and other similar agreements (including agreements entered into in connection with a Restricted Investment) entered into with the approval of the Company’s Board of Directors, which limitation is applicable only to the assets that are the subject of such agreements;
(12) encumbrances or restrictions applicable only to a Restricted Subsidiary that is not a Domestic Subsidiary;
(13) encumbrances or restrictions on cash or other deposits or net worth imposed by customers or lessors under contracts or leases entered into in the ordinary course of business;
(14) customary encumbrances and restrictions contained in agreements of the types described in the definition of Permitted Business Investments;
(15) agreements governing Hedging Obligations incurred in the ordinary course of business; and
(1615) any encumbrance restrictions under customary provisions in partnership agreements, limited liability company organizational or restriction with respect to an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary governance documents, joint venture agreements, corporate charters, stockholders’ agreements and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets similar agreements and property of such Unrestricted Subsidiary. In each case set forth above, notwithstanding any stated limitation documents on the assets transfer of ownership interests in such partnership, limited liability company, joint venture or property that may be subject to such encumbrance or restriction, an encumbrance or restriction on a specified asset or property or group or type of assets or property may also apply to all improvements, additions, repairs, attachments or accessions thereto, assets and property affixed or appurtenant thereto, parts, replacements and substitutions therefor, and all products and proceeds thereof, including dividends, distributions, interest and increases in respect thereofsimilar Person.
Appears in 2 contracts
Sources: Indenture (DT Credit Company, LLC), Indenture (DT Acceptance Corp)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) 6.1 The Company will not, and will not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1a) pay dividends or make any other distributions on its Capital Stock to the Company or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Company or any of its Restricted Subsidiaries; provided that the priority that any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends, distributions or liquidating distributions before dividends, distributions or liquidating distributions are paid in respect of common stock of such Restricted Subsidiary shall not constitute a restriction on the ability to make dividends or distributions on Capital Stock for purposes of this Section 4.08;
(2b) make loans or advances to the Company or any of its Restricted Subsidiaries (it being understood that the subordination of loans or advances made to the Company or any of its Restricted Subsidiaries to other Indebtedness incurred by the Company or any of its Restricted Subsidiaries shall not be deemed a restriction on the ability to make loans or advances)Subsidiaries; or
(3c) sell, lease or transfer any of its properties or assets to the Company or any of its Restricted Subsidiaries.
(b) The 6.2 However, the preceding restrictions in Section 4.08(a) hereof will not apply to encumbrances or restrictions existing under or by reason of:
(1a) agreements governing Existing Indebtedness and the Credit Agreement Facility or any other agreement as in effect at or entered into on the date of this Indenture Issue Date and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained in the amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are not in the good faith judgment of an Officer of the Company materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements on the date of this IndentureIssue Date;
(2b) this the Note Indenture, the Notes and the Note Guarantees, the RCF Facilities, the Intercreditor Agreement and the Transaction Security Documents;
(3c) agreements governing other Indebtedness permitted to be incurred under the provisions Clause 3 (Incurrence of Section 4.09 hereof Indebtedness and issuance of preferred stock) and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained therein are in the reasonable good faith judgment of an Officer of the Company, either (a) not materially more restrictive, taken as a whole, than those contained in this Indenture, the Notes and the Note Guarantees or the Credit Agreement as in effect on the date of this Indenture or (b) not reasonably likely to have a material adverse effect on the ability of the Company to make required payments on the NotesFinance Documents;
(4d) applicable law, rule, regulation or order;
(5e) any agreement or instrument governing Indebtedness of or Capital Stock of a Person acquired by the Company Issuer or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness agreement or Capital Stock instrument was entered into or incurred in connection with or in contemplation of such acquisition)) and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of any such agreement or instrument, provided that the amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are (i) no more restrictive or (ii) not materially less favourable as determined in good faith by the Issuer, than the dividend and other payment restrictions contained in such instrument at the time of such acquisition, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, and any amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings thereof; provided, that the encumbrances and restrictions in any such amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings are, in the reasonable good faith judgment of an Officer of the Company, no more restrictive, taken as a whole, than those in effect on the date of the acquisition; provided further, that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture the Finance Documents to be incurred;
(6f) customary non-assignment provisions in Hydrocarbon purchase contracts, leases and sale or exchange agreements or similar operational agreements or in licenses, easements or leases, in each case, licenses entered into in the ordinary course of business;
(7g) purchase money obligations for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on the property purchased or leased of the nature described in clause paragraph (3c) of Section 4.08(aClause 5 (Limitation on sale and leaseback transactions);
(8) h) any agreement for the sale or other disposition of the Capital Stock or all or substantially all of the property and assets of a Restricted Subsidiary of the Company that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(9i) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, in the reasonable good faith judgment of an Officer of the Company, are not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(10j) Liens permitted to be incurred under the provisions of Section 4.12 Clause 4 (Liens) that limit the right of the debtor to dispose of the assets subject to such Liens;
(11k) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment) entered into with the approval of the Company’s Board of Directors, which limitation is applicable only to the assets that are the subject of such agreements;
(12l) encumbrances or restrictions applicable only to a Restricted Subsidiary that is not a Domestic Subsidiary;
(13) encumbrances or restrictions on cash or other deposits or net worth imposed by customers or lessors suppliers or required by insurance, surety or bonding companies, in each case, under contracts or leases entered into in the ordinary course of business;
(14m) customary encumbrances and restrictions contained in agreements of the types described in the definition of Permitted Business InvestmentsHedging Obligations entered into from time to time;
(15n) agreements governing Hedging Obligations incurred in any mortgage financing or mortgage refinancing that imposes restrictions on the ordinary course of businessreal property (including any heritage building rights) securing such Indebtedness; and
(16o) agreements governing Indebtedness incurred pursuant to paragraphs (d) and (n) of Clause 3.2 above by a Restricted Subsidiary of the Company that is an Excluded Subsidiary under paragraph (c) of the definition thereof, provided that any encumbrance or restriction with respect to an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that in any such agreement was is not entered into in anticipation applicable to any Person, or the properties or assets of the Unrestricted Subsidiary becoming a any other Person, other than such Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Unrestricted Subsidiary. In each case set forth above, notwithstanding any stated limitation on the assets or property that may be subject to such encumbrance or restriction, an encumbrance or restriction on a specified asset or its property or group or type of assets or property may also apply to all improvements, additions, repairs, attachments or accessions thereto, assets and property affixed or appurtenant thereto, parts, replacements and substitutions therefor, and all products and proceeds thereof, including dividends, distributions, interest and increases in respect thereofassets.
Appears in 2 contracts
Sources: Term Facility Agreement (Manchester United PLC), Term Facility Agreement (Manchester United PLC)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock to the Company or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness indebtedness owed to the Company or any of its Restricted Subsidiaries; provided that the priority that any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends, distributions or liquidating distributions before dividends, distributions or liquidating distributions are paid in respect of common stock of such Restricted Subsidiary shall not constitute a restriction on the ability to make dividends or distributions on Capital Stock for purposes of this Section 4.08;
(2) make loans or advances to the Company or any of its Restricted Subsidiaries (it being understood that the subordination of loans or advances made to the Company or any of its Restricted Subsidiaries to other Indebtedness incurred by the Company or any of its Restricted Subsidiaries shall not be deemed a restriction on the ability to make loans or advances)Subsidiaries; or
(3) sell, lease or transfer any of its properties or assets to the Company or any of its Restricted Subsidiaries.
(b) The restrictions in Section 4.08(a) hereof will not apply to encumbrances or restrictions existing under or by reason of:
(1) agreements governing Existing Indebtedness and the Credit Agreement as in effect on the date of this Indenture and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained in the amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are not in the good faith judgment of an Officer of the Company materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements on the date of this IndentureIndenture (as determined in good faith by the Company);
(2) this Indenture, the Notes Notes, the Note Guarantees and the Note GuaranteesSecurity Documents;
(3) agreements governing other Indebtedness permitted to be incurred under the provisions of Section 4.09 hereof and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained therein are in the reasonable good faith judgment of an Officer of the Company, either (a) not materially more restrictive, taken as a whole, than those contained in this Indenture, the Notes and the Note Guarantees or (as determined in good faith by the Credit Agreement as in effect on the date of this Indenture or (b) not reasonably likely to have a material adverse effect on the ability of the Company to make required payments on the NotesCompany);
(4) applicable law, rule, regulation or order;
(5) any instrument agreement governing Indebtedness or Capital Stock of a Person Persons acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness or Capital Stock was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any PersonPersons, or the properties or assets of any PersonPersons, other than the PersonPersons, or the property or assets of the PersonPersons, so acquired, and any amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings thereof; provided, that the encumbrances and restrictions in any such amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings are, in the reasonable good faith judgment of an Officer of the Company, no more restrictive, taken as a whole, than those in effect on the date of the acquisition; provided further, that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be incurred, and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are not materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements on the date of such acquisition (as determined in good faith by the Company);
(6) customary non-assignment provisions in Hydrocarbon purchase and sale or exchange agreements or similar operational agreements or in licensescontracts, easements or leases, in each casesubleases, licenses and sublicenses entered into in the ordinary course of business;
(7) mortgage financings and purchase money obligations for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on the property mortgaged, purchased or leased of the nature described in clause (3) of Section 4.08(a)the preceding paragraph;
(8) any restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or other disposition of a Restricted Subsidiary that restricts distributions by that all or substantially all of the Capital Stock or assets of such Restricted Subsidiary pending its the closing of such sale or other disposition;
(9) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, in the reasonable good faith judgment of an Officer of the Company, are not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinancedrefinanced (as determined in good faith by the Company);
(10) Liens permitted to be incurred under the provisions of Section 4.12 hereof that limit the right of the debtor to dispose of the assets subject to such Liens;
(11) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment) entered into with the approval of the Company’s Board of Directors), which limitation is applicable only to the assets that are the subject of such agreements;
(12) encumbrances or restrictions applicable only to a Restricted Subsidiary that is not a Domestic Subsidiary;
(13) encumbrances or restrictions on cash or other deposits or net worth imposed by customers or lessors under contracts or leases entered into in the ordinary course of business;
(1413) customary encumbrances and restrictions contained in agreements the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if the encumbrance or restriction applies only in the event of a payment default or default with respect to a financial covenant contained in such Indebtedness or agreement and such encumbrance or restriction is not materially more disadvantageous to the holders of the types described Notes than is customary in comparable financings (as determined in good faith by the definition of Permitted Business Investments;Company) and the Company determines that any such encumbrance or restriction will not materially affect the Issuers’ ability to make principal or interest payments on the Notes; and
(1514) agreements governing Hedging Obligations incurred restrictions on the sale, lease or transfer of property or assets arising or agreed to in the ordinary course of business; and
(16) any encumbrance or restriction with respect to an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was , not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets or property of the Company or any other Restricted Subsidiary other than in any manner material to the assets and property of such Unrestricted Company or any Restricted Subsidiary. In each case set forth above, notwithstanding any stated limitation on the assets or property that may be subject to such encumbrance or restriction, an encumbrance or restriction on a specified asset or property or group or type of assets or property may also apply to all improvements, additions, repairs, attachments or accessions thereto, assets and property affixed or appurtenant thereto, parts, replacements and substitutions therefor, and all products and proceeds thereof, including dividends, distributions, interest and increases in respect thereof.
Appears in 2 contracts
Sources: Indenture (Radio One, Inc.), Indenture (Radio One, Inc.)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or permit otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) (i) pay dividends or make any other distributions on its Capital Stock to the Company or any of Restricted Subsidiary (A) on its Restricted Subsidiaries, Capital Stock or (B) with respect to any other interest or participation in, or measured by, its profits, or (ii) pay any Indebtedness owed to the Company or any of its Restricted Subsidiaries; provided that the priority that any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends, distributions or liquidating distributions before dividends, distributions or liquidating distributions are paid in respect of common stock of such Restricted Subsidiary shall not constitute a restriction on the ability to make dividends or distributions on Capital Stock for purposes of this Section 4.08Subsidiary;
(2) make loans or advances to the Company or any of its Restricted Subsidiaries (it being understood that the subordination of loans or advances made to the Company or any of its Restricted Subsidiaries to other Indebtedness incurred by the Company or any of its Restricted Subsidiaries shall not be deemed a restriction on the ability to make loans or advances)Subsidiary; or
(3) sell, lease or transfer any of its properties or assets to the Company or any of its Restricted Subsidiaries.
(b) The Subsidiary. However, the preceding restrictions in Section 4.08(a) hereof will not apply to encumbrances or restrictions existing under or by reason of:
(1) agreements governing Existing Indebtedness and the Credit Agreement as in effect on as of the date of this Indenture hereof, and any amendments, modifications, restatements, modificationsrenewals, renewalsincreases, supplements, refundings, replacements or refinancings of those agreementsthereof; provided that the encumbrances or restrictions contained in the such amendments, modifications, restatements, modificationsrenewals, renewalsincreases, supplements, refundings, replacements or refinancings are not no more restrictive in the good faith judgment of an Officer of the Company materially more restrictive, taken as a whole, aggregate with respect to such dividend and other payment restrictions than those contained in those the agreements governing Existing Indebtedness as in effect on the date of this Indenturehereof;
(2) this Indenturethe Credit Agreement as in effect as of the date hereof, the Notes and the Note Guarantees;
(3) agreements governing other Indebtedness permitted to be incurred under the provisions of Section 4.09 hereof and any amendments, modifications, restatements, modificationsrenewals, renewalsincreases, supplements, refundings, replacements or refinancings of those agreementsthereof; provided that the encumbrances such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or restrictions contained therein refinancings are no more restrictive in the reasonable good faith judgment of an Officer of the Company, either (a) not materially more restrictive, taken as a whole, aggregate with respect to such dividend and other payment restrictions than those contained in this Indenture, the Notes and the Note Guarantees or the Credit Agreement as in effect on the date of hereof;
(3) this Indenture or (b) not reasonably likely to have a material adverse effect on the ability of the Company to make required payments on and the Notes;
(4) applicable law, including, for the avoidance of doubt, any applicable rule, regulation or order;
(5) any instrument governing Indebtedness or Capital Stock of a Person acquired by the Company or any of its Restricted Subsidiaries Subsidiary as in effect at the time of such acquisition (except to the extent such Indebtedness or Capital Stock was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, and any amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings thereof; provided, that the encumbrances and restrictions in any such amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings are, in the reasonable good faith judgment of an Officer of the Company, no more restrictive, taken as a whole, than those in effect on the date of the acquisition; provided further, that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be incurred;
(6) customary non-assignment provisions in Hydrocarbon purchase and sale contracts, licenses or exchange agreements or similar operational agreements or in licenses, easements or leases, in each case, leases entered into in the ordinary course of businessbusiness and consistent with past practices;
(7) purchase money obligations for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on the property purchased or leased of the nature described in clause (3) of Section 4.08(a);
(8) any agreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(8) restrictions on the transfer of property subject to mortgage, purchase money obligations or Capital Lease Obligations otherwise permitted by clause (5) of Section 4.10;
(9) Permitted permitted Refinancing Indebtedness; , provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, are no more restrictive in the reasonable good faith judgment of an Officer of the Company, not materially more restrictive, taken as a whole, aggregate than those contained in the agreements governing the Indebtedness being refinanced;
(10) Liens permitted to be incurred under the provisions of Section 4.12 4.11 that limit the right of the debtor to dispose of the assets subject to such Liens;
(11) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Permitted Investment) entered into with the approval of the Company’s Board of Directors, which limitation is applicable only to the assets that are the subject of such agreements;
(12) encumbrances or restrictions applicable only to a Restricted Subsidiary that is not a Domestic Subsidiary;
(13) encumbrances or restrictions on cash or other deposits or net worth imposed by customers or lessors under contracts or leases entered into in the ordinary course of business;
(14) customary encumbrances and restrictions contained in agreements of the types described in the definition of Permitted Business Investments;
(1513) agreements governing Hedging Obligations other Indebtedness permitted to be incurred under the provisions of Section 4.10 and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the restrictions therein will not materially affect the Company’s ability to make anticipated principal or interest payments on the Notes (as determined in good faith by senior management or the ordinary course Board of businessDirectors of the Company); and
(1614) any encumbrance or restriction with respect to an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Unrestricted Subsidiary. In each case set forth above, notwithstanding any stated limitation on the assets or property that may be subject to such encumbrance or restriction, an encumbrance Lien or restriction on a specified asset Securitization Subsidiary that, in the good faith judgment of senior management or property or group or type the Board of assets or property may also Directors of the Company, is reasonably required in connection therewith; provided, however, that such restrictions only apply to all improvements, additions, repairs, attachments or accessions thereto, assets and property affixed or appurtenant thereto, parts, replacements and substitutions therefor, and all products and proceeds thereof, including dividends, distributions, interest and increases in respect thereofSecuritization Subsidiaries.
Appears in 2 contracts
Sources: Senior Indenture (Iron Mountain Inc), Senior Indenture (Iron Mountain Inc)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock to the Company or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Company or any of its Restricted Subsidiaries; provided that the priority that any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends, distributions or liquidating distributions before dividends, distributions or liquidating distributions are paid in respect of common stock of such Restricted Subsidiary shall not constitute a restriction on the ability to make dividends or distributions on Capital Stock for purposes of this Section 4.08;
(2) make loans or advances to the Company or any of its Restricted Subsidiaries (it being understood that the subordination of loans or advances made to the Company or any of its Restricted Subsidiaries to other Indebtedness incurred by the Company or any of its Restricted Subsidiaries shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its properties or assets to the Company or any of its Restricted Subsidiaries.
(b) The restrictions in Section 4.08(a) hereof will not apply to encumbrances or restrictions existing under or by reason of:
(1) agreements governing Existing Indebtedness and the Credit Agreement as in effect on the date of this Indenture and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained in the amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are not in the good faith judgment of an Officer of the Company materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements on the date of this Indenture;
(2) this Indenture, the Notes and the Note Guarantees;
(3) agreements governing other Indebtedness permitted to be incurred under the provisions of Section 4.09 hereof and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained therein are in the reasonable good faith judgment of an Officer of the Company, either (a) not materially more restrictive, taken as a whole, than those contained in this Indenture, the Notes and the Note Guarantees or the Credit Agreement as in effect on the date of this Indenture or (b) not reasonably likely to have a material adverse effect on the ability of the Company to make required payments on the Notes;
(4) applicable law, rule, regulation or order;
(5) any agreement or other instrument governing Indebtedness or Capital Stock of a Person acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness agreement or Capital Stock instrument was incurred created in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the PersonPerson and its Subsidiaries, or the property or assets of the PersonPerson and its Subsidiaries, so acquired, and any amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings thereof; provided, that the encumbrances and restrictions in any such amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings are, in the reasonable good faith judgment of an Officer of the Company, no more restrictive, taken as a whole, than those in effect on the date of the acquisition; provided further, that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be incurred;
(6) customary non-assignment provisions in Hydrocarbon purchase and sale or exchange agreements or similar operational agreements or in licenses, easements or leases, in each case, entered into in the ordinary course of business;
(7) purchase money obligations for property acquired in the ordinary course of business and Capital Finance Lease Obligations that impose restrictions on the property purchased or leased of the nature described in clause (3) of Section 4.08(a);
(8) any agreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(9) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, in the reasonable good faith judgment of an Officer of the Company, not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(10) Liens permitted to be incurred under the provisions of Section 4.12 that limit the right of the debtor to dispose of the assets subject to such Liens;
(11) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment) entered into with the approval of the Company’s Board of Directors), which limitation is applicable only to the assets that are the subject of such agreements;
(12) encumbrances or restrictions applicable only to a Restricted Subsidiary that is not a Domestic Subsidiary;
(13) encumbrances or restrictions on cash or other deposits or net worth imposed by customers or lessors under contracts or leases entered into in the ordinary course of business;
(14) customary encumbrances and restrictions contained in agreements of the types described in the definition of “Permitted Business Investments”;
(15) agreements governing Hedging Obligations incurred in the ordinary course of business; and;
(16) any encumbrance or restriction with respect to an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Unrestricted Subsidiary; and
(17) contractual encumbrances or restrictions in effect on the Issue Date and, in each case, any similar contractual encumbrances effected by any amendments, modifications, restatements, renewals, supplements, refundings, replacements or refinancings of such agreements or instruments. In each case set forth above, notwithstanding any stated limitation on the assets or property that may be subject to such encumbrance or restriction, an encumbrance or restriction on a specified asset or property or group or type of assets or property may also apply to all improvements, additions, repairs, attachments or accessions thereto, assets and property affixed or appurtenant thereto, parts, replacements and substitutions therefor, and all products and proceeds thereof, including dividends, distributions, interest and increases in respect thereof.
Appears in 2 contracts
Sources: Indenture (Permian Resources Corp), Indenture (Permian Resources Corp)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock to the Company or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Company or any of its Restricted Subsidiaries; provided that the priority that any series of Preferred Stock preferred stock of a Restricted Subsidiary has in receiving dividends, distributions dividends or liquidating distributions before dividends, distributions dividends or liquidating distributions are paid in respect of common stock of such Restricted Subsidiary shall not constitute a restriction on the ability to make pay dividends or make distributions on Capital Stock for purposes of this Section 4.084.08(a);
(2) make loans or advances to the Company or any of its Restricted Subsidiaries (it being understood that the subordination of loans or advances made to the Company or any of its such Restricted Subsidiaries Subsidiary to other Indebtedness incurred by the Company or any of its such Restricted Subsidiaries Subsidiary shall not be deemed a restriction on the ability to make loans or advancesadvances for purposes of this Section 4.08(a)); or
(3) sell, lease or transfer any of its properties or assets to the Company or any of its Restricted Subsidiaries.
(b) The However, the restrictions in Section 4.08(a) hereof will not apply to encumbrances or restrictions existing under or by reason of:
(1) agreements governing Existing Indebtedness and the Credit Agreement or instruments as in effect on the date of this Indenture Issue Date and any amendments, modifications, restatements, modificationsrenewals, renewalsextensions, increases, supplements, refundings, replacements or refinancings of those agreements; agreements or the Indebtedness to which they relate, provided that the encumbrances or restrictions contained in the any amendments, modifications, restatements, modificationsrenewals, renewalsextensions, increases, supplements, refundings, replacements or refinancings are not are, in the reasonable good faith judgment of an the Chief Financial Officer of the Company General Partner, not materially more restrictive, taken as a whole, with respect to such dividend dividend, distribution and other payment restrictions than those contained in those agreements on the date of this IndentureIssue Date;
(2) this Indenture, the Notes and the Note Guarantees;
(3) agreements governing other Indebtedness permitted to be incurred under the provisions of Section 4.09 hereof and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained therein are in the reasonable good faith judgment of an Officer of the Company, either (a) not materially more restrictive, taken as a whole, than those contained in this Indenture, the Notes and the Note Guarantees or the Credit Agreement as in effect on the date of this Indenture or (b) not reasonably likely to have a material adverse effect on the ability of the Company to make required payments on the Notes;
(4) applicable law, rule, regulation regulation, order, approval, license, permit or ordersimilar restriction;
(54) any instrument governing Indebtedness or Capital Stock of a Person acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness or Capital Stock was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, acquired and any amendments, modifications, restatements, modifications, renewals, extensions, increases, supplements, increases, refundings, replacements or refinancings thereof; provided, provided that the encumbrances and or restrictions contained in any such amendments, modifications, restatements, modifications, renewals, extensions, increases, supplements, increases, refundings, replacements or refinancings are, in the reasonable good faith judgment of an the Chief Financial Officer of the CompanyGeneral Partner, no not materially more restrictive, taken as a whole, than those in effect on the date of the acquisition; provided provided, further, that, in the case of Indebtedness, the incurrence of such Indebtedness was permitted by the terms of this Indenture to be incurredIndenture;
(65) customary non-assignment provisions in Hydrocarbon purchase and sale contracts or exchange agreements or similar operational agreements or in licenses, easements or leases, in each case, entered into in the ordinary course of business;
(76) mortgage financings, security agreements or purchase money obligations obligations, in each case, for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on the property purchased or leased of the nature described in clause (3) of Section 4.08(a);
(8) 7) any agreement for the sale or other disposition of the Equity Interests in, or all or substantially all of the properties or assets of, a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its the sale or other disposition;
(9) 8) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, in the reasonable good faith judgment of an Officer of the Company, are not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(109) Liens permitted to be incurred under the provisions of Section 4.12 that limit the right of the debtor to dispose of the assets subject to such Liens;
(1110) provisions limiting with respect to the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including including, but not limited to, agreements entered into in connection with a Restricted Investment) entered into in the ordinary course of business or entered into with the approval of the Company’s Board of Directors;
(11) any agreement or instrument relating to any property or assets acquired after the Issue Date, which limitation is applicable so long as such encumbrance or restriction relates only to the property or assets that are the subject so acquired and is not and was not created in anticipation of such agreementsacquisition;
(12) encumbrances or restrictions applicable only to a Restricted Subsidiary that is not a Domestic Subsidiary;
(13) encumbrances or restrictions on cash cash, Cash Equivalents or other deposits or net worth imposed by customers or lessors under contracts or leases entered into in the ordinary course of business;
(13) the issuance of preferred stock by a Restricted Subsidiary or the payment of dividends thereon in accordance with the terms thereof; provided that issuance of such preferred stock is permitted pursuant to Section 4.09 and the terms of such preferred stock do not expressly restrict the ability of such Restricted Subsidiary to pay dividends or make any other distributions on its Capital Stock (other than requirements to pay dividends or liquidation preferences on such preferred stock prior to paying any dividends or making any other distributions on such other Capital Stock);
(14) customary encumbrances and restrictions contained in agreements of the types described in the definition of Permitted Business Investmentsobligations under Hedging Contracts permitted from time to time under this Indenture;
(15) agreements governing Hedging Obligations any agreement or instrument relating to Indebtedness incurred or Capital Stock issued by any Restricted Subsidiary; provided that the encumbrances or restrictions contained in the ordinary course agreements or instruments governing such Indebtedness or Capital Stock (a) apply only in the event of businessa payment default or a default with respect to a financial covenant in such agreement or instrument or (b) will not materially affect the Company’s ability to make payments with respect to the principal of, or the interest and premium, if any, on, the Notes, as determined in the reasonable good faith judgment of the Chief Executive Officer or the Chief Financial Officer of the General Partner; and
(16) any encumbrance other agreement governing Indebtedness permitted to be incurred by Section 4.09 and any amendments, modifications, restatements, renewals, extensions, increases, supplements, refundings, replacements or restriction with respect to an Unrestricted Subsidiary pursuant to or by reason refinancings of an agreement those agreements; provided, that the Unrestricted Subsidiary is a party to encumbrances or entered into before restrictions in such agreements are, in the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation reasonable good faith judgment of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property Chief Financial Officer of the Company General Partner, not materially more restrictive, taken as a whole, than those contained in this Indenture or any other Restricted Subsidiary other than the assets and property of such Unrestricted Subsidiary. In Credit Agreement, in each case set forth abovecase, notwithstanding any stated limitation as in effect on the assets or property that may be subject to such encumbrance or restriction, an encumbrance or restriction on a specified asset or property or group or type of assets or property may also apply to all improvements, additions, repairs, attachments or accessions thereto, assets and property affixed or appurtenant thereto, parts, replacements and substitutions therefor, and all products and proceeds thereof, including dividends, distributions, interest and increases in respect thereofIssue Date.
Appears in 2 contracts
Sources: Indenture (Tetra Technologies Inc), Indenture (Compressco Partners, L.P.)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company Borrower will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1i) pay dividends or make any other distributions on its Capital Stock Equity Interests to the Company Borrower or any of its the Borrower’s Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Company Borrower or any of its the Borrower’s Restricted Subsidiaries; provided that the priority that any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends, distributions or liquidating distributions before dividends, distributions or liquidating distributions are paid in respect of common stock of such Restricted Subsidiary shall not constitute a restriction on the ability to make dividends or distributions on Capital Stock for purposes of this Section 4.08;
(2ii) make loans or advances to the Company Borrower or any of its the Borrower’s Restricted Subsidiaries (it being understood that the subordination of loans or advances made to the Company or any of its Restricted Subsidiaries to other Indebtedness incurred by the Company or any of its Restricted Subsidiaries shall not be deemed a restriction on the ability to make loans or advances)Subsidiaries; or
(3iii) sell, lease or transfer any of its properties or assets to the Company Borrower or any of its the Borrower’s Restricted Subsidiaries.
(b) The restrictions in Section 4.08(a7.08(a) hereof will not apply to encumbrances or restrictions existing under or by reason of:
(1i) agreements governing Existing Indebtedness and the Credit Agreement any other agreement as in effect on the date of this Indenture Closing Date or the Debt Assumption Date, as applicable, and any amendments, modifications, restatements, modificationsrenewals, renewalsincreases, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained in the such amendments, modifications, restatements, modificationsrenewals, renewalsincreases, supplements, refundings, replacements or refinancings are not in the good faith judgment of an Officer of the Company materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those such agreements on the date of this IndentureClosing Date or the Debt Assumption Date, as applicable;
(2ii) this IndentureAgreement, the Notes Loans and the Note related Guarantees;
(3) agreements governing other Indebtedness permitted to be incurred under the provisions of Section 4.09 hereof and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained therein are in the reasonable good faith judgment of an Officer of the Company, either (a) not materially more restrictive, taken as a whole, than those contained in this Indenture, the Notes and the Note Guarantees or the Credit Agreement as in effect on the date of this Indenture or (b) not reasonably likely to have a material adverse effect on the ability of the Company to make required payments on the Notes;
(4iii) applicable law, rule, regulation or administrative or court order;
(5iv) any instrument governing Indebtedness or Capital Stock Equity Interests of a Person acquired by the Company Borrower or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness or Capital Stock was incurred or Equity Interests were issued in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, and any amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings thereof; provided, that the encumbrances and restrictions in any such amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings are, in the reasonable good faith judgment of an Officer of the Company, no more restrictive, taken as a whole, than those in effect on the date of the acquisition; provided further, that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be incurred;
(6v) customary non-assignment provisions in Hydrocarbon purchase and sale or exchange agreements or similar operational agreements or in leases, licenses, easements or leases, in each case, contracts and other agreements entered into in the ordinary course of business;
(7vi) purchase money obligations for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on the property purchased or leased so acquired of the nature described in clause (3) of Section 4.08(a7.08(a)(3);
(8) vii) any agreement for the sale or other disposition of all or substantially all of the Equity Interests or assets of a Restricted Subsidiary that restricts distributions by that such Restricted Subsidiary pending its the closing of such sale or other disposition;
(9viii) agreements governing Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, in the reasonable good faith judgment of an Officer the senior management or the Board of Directors of the CompanyBorrower, not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(10ix) Liens any agreement creating a Lien securing Indebtedness otherwise permitted to be incurred under pursuant to the provisions of Section 4.12 that limit 7.12, to the extent limiting the right of the debtor Borrower or any of its Restricted Subsidiaries to dispose of the assets subject to such LiensLien;
(11x) provisions limiting with respect to the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment) entered into the ordinary course of business or with the approval of the CompanyBorrower’s Board of Directors, which limitation is applicable only to the assets that are the subject of such agreements;
(12xi) encumbrances or customary restrictions applicable only to on a Restricted Receivables Subsidiary that is not and Receivables Program Assets effected in connection with a Domestic SubsidiaryQualified Receivables Transaction;
(13xii) encumbrances or restrictions on cash or other deposits or net worth imposed by customers or lessors under contracts or leases entered into in the ordinary course of business;
(14xiii) customary encumbrances and restrictions contained in agreements the case of the types provision described in Section 7.08(a)(3): (a) that restrict in a customary manner the definition subletting, assignment or transfer of Permitted Business Investments;
any property or asset that is a lease, license, conveyance or contract or similar property or asset or (15b) agreements governing Hedging Obligations incurred arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of the Borrower or any Restricted Subsidiary thereof in any manner material to the Borrower or any Restricted Subsidiary thereof;
(xiv) existing under, by reason of or with respect to customary provisions contained in leases or licenses of intellectual property and other agreements, in each case, entered into in the ordinary course of business;
(xv) existing under, by reason of or with respect to Indebtedness of the Borrower or a Restricted Subsidiary not prohibited to be incurred under this Agreement; provided that (a) such encumbrances or restrictions are customary for the type of Indebtedness being incurred and the jurisdiction of the obligor and (b) such encumbrances or restrictions will not affect in any material respect the Borrower’s or any Guarantor’s ability to make principal and interest payments on the Loans, as determined in good faith by the Borrower;
(xvi) agreements governing Indebtedness incurred in compliance with Section 7.09(b)(4), provided that such encumbrances or restrictions apply only to assets financed with the proceeds of such Indebtedness;
(xvii) any other agreement governing Indebtedness incurred after the Closing Date that contains encumbrances or other restrictions that are, in the good faith judgment of the senior management or the Board of Directors of the Borrower, no more restrictive in any material respect taken as a whole than those encumbrances and other restrictions that are customary in comparable financings; and
(16xviii) any encumbrance encumbrances or restriction with respect restrictions imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiaryin clauses (1) through (17) above; provided that such agreement was not entered into amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in anticipation the good faith judgment of the Unrestricted Subsidiary becoming Borrower, not materially more restrictive as a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Unrestricted Subsidiary. In each case set forth above, notwithstanding any stated limitation on the assets or property that may be subject whole with respect to such encumbrance encumbrances or restrictionrestrictions than prior to such amendment, an encumbrance modification, restatement, renewal, increase, supplement, refunding, replacement or restriction on a specified asset or property or group or type of assets or property may also apply to all improvements, additions, repairs, attachments or accessions thereto, assets and property affixed or appurtenant thereto, parts, replacements and substitutions therefor, and all products and proceeds thereof, including dividends, distributions, interest and increases in respect thereofrefinancing.
Appears in 2 contracts
Sources: Bridge Facility Agreement (Bellring Brands, Inc.), Bridge Facility Agreement (Post Holdings, Inc.)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company will Parent Guarantor shall not, and will shall not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1i) pay dividends or make any other distributions on its Capital Stock to the Company Parent Guarantor or any of its Restricted SubsidiariesSubsidiary, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Company Issuer or any of its Restricted Subsidiaries; provided that the priority that any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends, distributions or liquidating distributions before dividends, distributions or liquidating distributions are paid in respect of common stock of such Restricted Subsidiary shall not constitute a restriction on the ability to make dividends or distributions on Capital Stock for purposes of this Section 4.08Guarantor;
(2ii) make loans or advances to the Company Parent Guarantor or any of its Restricted Subsidiaries (it being understood that the subordination of loans or advances made to the Company or any of its Restricted Subsidiaries to other Indebtedness incurred by the Company or any of its Restricted Subsidiaries shall not be deemed a restriction on the ability to make loans or advances)Subsidiary; or
(3iii) sell, lease or transfer any of its properties or assets to the Company Parent Guarantor or any Restricted Subsidiary; provided that (x) the priority of its any preferred stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill period to) loans or advances made to the Parent Guarantor or any Restricted SubsidiariesSubsidiary to other Indebtedness incurred by the Parent Guarantor or any Restricted Subsidiary, shall not be deemed to constitute such an encumbrance or restriction.
(b) The restrictions in provisions of Section 4.08(a4.16(a) hereof will above shall not apply to encumbrances or restrictions existing under or by reason of:
(1i) agreements governing Indebtedness (including Existing Indebtedness Indebtedness), charter documents and the Credit Agreement shareholder agreement as in effect on the date of this Indenture Issue Date and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained in the amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are not in materially less favorable to the good faith judgment of an Officer holders of the Company materially more restrictiveNotes, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements on the date of this IndentureIssue Date (as determined in good faith by the Parent Guarantor);
(2ii) this Indenture, the Notes Notes, the Note Guarantees and the Note GuaranteesSecurity Documents;
(3iii) agreements governing other Indebtedness permitted to be incurred under the provisions of Section 4.09 hereof 4.06 and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the restrictions therein are not materially less favorable to the holders of the Notes than is customary in comparable financings (as determined in good faith by the Issuer) and the Issuer determines at the time of the incurrence of such Indebtedness that such encumbrances or restrictions contained therein are will not adversely effect, in the reasonable good faith judgment of an Officer of the Company, either (a) not materially more restrictive, taken as a whole, than those contained in this Indentureany material respect, the Notes and the Note Guarantees or the Credit Agreement as in effect on the date of this Indenture or (b) not reasonably likely to have a material adverse effect on the Issuer’s ability of the Company to make required principal or interest payments on the Notes;
(4iv) applicable law, rule, regulation or orderorder or the terms of any license, authorization, concession or permit;
(5v) any instrument governing Indebtedness or Capital Stock of a Person acquired by the Company Parent Guarantor or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness or Capital Stock was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, and any amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings thereof; provided, that the encumbrances and restrictions in any such amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings are, in the reasonable good faith judgment of an Officer of the Company, no more restrictive, taken as a whole, than those in effect on the date of the acquisition; provided further, that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be incurred;
(6vi) customary non-assignment and similar provisions in Hydrocarbon purchase contracts, leases and sale or exchange agreements or similar operational agreements or in licenses, easements or leases, in each case, licenses entered into in the ordinary course of business;
(7vii) purchase money obligations for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on the property purchased or leased of the nature described set forth in clause (3) of Section 4.08(a4.16(a)(iii);
(8) viii) any agreement for the sale or other disposition of the Capital Stock or all or substantially all of the property and assets of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(9ix) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, in the reasonable good faith judgment of an Officer of the Company, are not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(10x) Liens permitted to be incurred under the provisions of Section 4.12 4.07 that limit the right of the debtor to dispose of the assets subject to such Liens;
(11xi) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment) entered into with the approval of the CompanyParent Guarantor’s Board of Directors, which limitation is applicable only to the assets that are the subject of such agreements;
(12xii) encumbrances or restrictions applicable only to a Restricted Subsidiary that is not a Domestic Subsidiary;
(13) encumbrances or restrictions on cash or other deposits or net worth imposed by customers or lessors suppliers or required by insurance, surety or bonding companies, in each case, under contracts or leases entered into in the ordinary course of business;
(14xiii) any customary encumbrances Productive Asset Leases for Vessels and restrictions contained in agreements of the types described in the definition of Permitted Business Investments;
(15) agreements governing Hedging Obligations incurred other assets used in the ordinary course of business; andprovided that such encumbrance or restriction only extends to the Vessel or other asset financed in such Productive Asset Lease;
(16xiv) any Restricted Investment not prohibited by Section 4.08 and any Permitted Investment;
(xv) any encumbrance or restriction existing with respect to an any Unrestricted Subsidiary pursuant to or by reason the property or assets of an agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became that is designated as a Restricted Subsidiary in accordance with the terms of this Indenture at the time of such designation and not incurred in contemplation of such designation, which encumbrances or restrictions are not applicable to any Person other than such Unrestricted Subsidiary or the property or assets of such Unrestricted Subsidiary; provided that the encumbrances or restrictions are customary for the business of such agreement was not entered into Unrestricted Subsidiary and would not, at the time agreed to, be expected (as determined in anticipation good faith by the Issuer) to affect the ability of the Unrestricted Subsidiary becoming a Restricted Subsidiary Issuer and the Guarantors to make payments under the Notes, the Note Guarantees and this Indenture, as applicable;
(xvi) customary encumbrances or restrictions contained in agreements in connection with Hedging Obligations and Cash Management Obligations permitted under this Indenture; and
(xvii) any such encumbrance or restriction does not extend existing under any agreement that extends, renews, refinances, replaces, amends, modifies, restates or supplements the agreements containing the encumbrances or restrictions in the foregoing clauses (i) through (xvi), or in this clause (xvii); provided that the terms and conditions of any such encumbrances or restrictions are no more restrictive in any material respect than those under or pursuant to any assets the agreement so extended, renewed, refinanced, replaced, amended, modified, restated or property of the Company or any other Restricted Subsidiary other than the assets and property of such Unrestricted Subsidiary. In each case set forth above, notwithstanding any stated limitation on the assets or property that may be subject to such encumbrance or restriction, an encumbrance or restriction on a specified asset or property or group or type of assets or property may also apply to all improvements, additions, repairs, attachments or accessions thereto, assets and property affixed or appurtenant thereto, parts, replacements and substitutions therefor, and all products and proceeds thereof, including dividends, distributions, interest and increases in respect thereofsupplemented.
Appears in 2 contracts
Sources: Indenture (Lindblad Expeditions Holdings, Inc.), Indenture (Lindblad Expeditions Holdings, Inc.)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company will not, and will not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock to the Company or any of its Restricted SubsidiariesSubsidiary, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Company or any of its Restricted Subsidiaries; provided that the priority that any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends, distributions or liquidating distributions before dividends, distributions or liquidating distributions are paid in respect of common stock of such Restricted Subsidiary shall not constitute a restriction on the ability to make dividends or distributions on Capital Stock for purposes of this Section 4.08Subsidiary;
(2) make loans or advances to the Company or any of its Restricted Subsidiaries (it being understood that the subordination of loans or advances made to the Company or any of its Restricted Subsidiaries to other Indebtedness incurred by the Company or any of its Restricted Subsidiaries shall not be deemed a restriction on the ability to make loans or advances)Subsidiary; or
(3) sell, lease or transfer any of its properties or assets to the Company or any Restricted Subsidiary, provided that (x) the priority of its any preferred stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill period to) loans or advances made to the Company or any Restricted SubsidiariesSubsidiary to other Indebtedness incurred by the Company or any Restricted Subsidiary, shall not be deemed to constitute such an encumbrance or restriction.
(b) The restrictions in Section 4.08(a) hereof will not apply to encumbrances or restrictions existing under or by reason of:
(1) agreements governing Indebtedness (including Existing Indebtedness Indebtedness), charter documents and the Credit Agreement shareholder agreement as in effect on the date of this Indenture Issue Date and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained in the amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are not in materially less favorable to the good faith judgment of an Officer Holders of the Company materially more restrictiveNotes, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements on the date of this IndentureIssue Date (as determined in good faith by the Company);
(2) this Indenture, the Notes and the Note Guarantees;
(3) agreements governing other Indebtedness permitted to be incurred under the provisions of Section 4.09 hereof and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the restrictions therein are not materially less favorable to the Holders of the Notes than is customary in comparable financings (as determined in good faith by the Company) and the Company determines at the time of the incurrence of such Indebtedness that such encumbrances or restrictions contained therein are will not adversely effect, in the reasonable good faith judgment of an Officer of any material respect, the Company, either (a) not materially more restrictive, taken as a whole, than those contained in this Indenture, the Notes and the Note Guarantees or the Credit Agreement as in effect on the date of this Indenture or (b) not reasonably likely to have a material adverse effect on the ’s ability of the Company to make required principal or interest payments on the Notes;
(4) applicable law, rule, regulation or orderorder or the terms of any license, authorization, concession or permit;
(5) any instrument governing Indebtedness or Capital Stock of a Person acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness or Capital Stock was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, and any amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings thereof; provided, that the encumbrances and restrictions in any such amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings are, in the reasonable good faith judgment of an Officer of the Company, no more restrictive, taken as a whole, than those in effect on the date of the acquisition; provided further, that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be incurred;
(6) customary non-assignment and similar provisions in Hydrocarbon purchase contracts, leases and sale or exchange agreements or similar operational agreements or in licenses, easements or leases, in each case, licenses entered into in the ordinary course of business;
(7) purchase money obligations for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on the property purchased or leased of the nature described in clause (3Section 4.08(a)(3) of Section 4.08(a)hereof;
(8) any agreement for the sale or other disposition of the Capital Stock or all or substantially all of the property and assets of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(9) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, in the reasonable good faith judgment of an Officer of the Company, are not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(10) Liens permitted to be incurred under the provisions of Section 4.12 hereof that limit the right of the debtor to dispose of the assets subject to such Liens;
(11) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment) entered into with the approval of the Company’s Board of Directors, which limitation is applicable only to the assets that are the subject of such agreements;
(12) encumbrances or restrictions applicable only to a Restricted Subsidiary that is not a Domestic Subsidiary;
(13) encumbrances or restrictions on cash or other deposits or net worth imposed by customers or lessors suppliers or required by insurance, surety or bonding companies, in each case, under contracts or leases entered into in the ordinary course of business;
(13) any customary Productive Asset Leases for Vessels and other assets used in the ordinary course of our business; provided that such encumbrance or restriction only extends to the Vessel or other asset financed in such Productive Asset Lease;
(14) customary encumbrances any Restricted Investment not prohibited by Section 4.07 hereof and restrictions contained in agreements of the types described in the definition of any Permitted Business InvestmentsInvestment;
(15) any encumbrance or restriction existing with respect to any Unrestricted Subsidiary or the property or assets of such Unrestricted Subsidiary that is designated as a Restricted Subsidiary in accordance with the terms of this Indenture at the time of such designation and not incurred in contemplation of such designation, which encumbrances or restrictions are not applicable to any Person other than such Unrestricted Subsidiary or the property or assets of such Unrestricted Subsidiary; provided that the encumbrances or restrictions are customary for the business of such Unrestricted Subsidiary and would not, at the time agreed to, be expected (as determined in good faith by the Company) to affect the ability of the Company and the Guarantors to make payments under the Notes and this Indenture;
(16) customary encumbrances or restrictions contained in agreements governing in connection with Hedging Obligations incurred in the ordinary course of businesspermitted under this Indenture; and
(1617) any encumbrance or restriction with respect to an Unrestricted Subsidiary pursuant to or by reason of an existing under any agreement that extends, renews, refinances, replaces, amends, modifies, restates or supplements the Unrestricted Subsidiary is a party to agreements containing the encumbrances or entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiaryrestrictions in Section 4.08(b)(1) through Section 4.08(b)(16) hereof, or in this Section 4.08(b)(17); provided that such agreement was not entered into in anticipation the terms and conditions of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance encumbrances or restriction does not extend restrictions are no more restrictive in any material respect than those under or pursuant to any assets the agreement so extended, renewed, refinanced, replaced, amended, modified, restated or property of the Company or any other Restricted Subsidiary other than the assets and property of such Unrestricted Subsidiary. In each case set forth above, notwithstanding any stated limitation on the assets or property that may be subject to such encumbrance or restriction, an encumbrance or restriction on a specified asset or property or group or type of assets or property may also apply to all improvements, additions, repairs, attachments or accessions thereto, assets and property affixed or appurtenant thereto, parts, replacements and substitutions therefor, and all products and proceeds thereof, including dividends, distributions, interest and increases in respect thereofsupplemented.
Appears in 2 contracts
Sources: Indenture (Viking Holdings LTD), Indenture (Viking Holdings LTD)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, to create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary that is not a Guarantor to:
(1) pay dividends or make any other distributions on its Capital Stock to the Company or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Company or any of its Restricted Subsidiaries; provided that (i) the priority that any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends, distributions or liquidating distributions before dividends, distributions or liquidating distributions are paid in respect of common stock of such Restricted Subsidiary shall not constitute a restriction on the ability to make dividends or distributions on Capital Stock for purposes of this Section 4.08covenant and (ii) the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness incurred by the Company or any Restricted Subsidiary shall be deemed not to be a restriction on the ability to make payments with respect to such loans or advances;
(2) make loans or advances to the Company or any of its Restricted Subsidiaries (it being understood that the subordination of loans or advances made to the Company or any of its Restricted Subsidiaries Subsidiary to other Indebtedness incurred by the Company or any of its Restricted Subsidiaries Subsidiary shall not be deemed not to be a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its properties or assets to the Company or any of its Restricted Subsidiaries.
(b) The restrictions in Section 4.08(a) hereof will not apply to encumbrances or restrictions existing under or by reason of:
(1) the Senior Credit Facility and other agreements governing Existing Indebtedness and the Credit Agreement as in effect on the date of this Indenture Issue Date and any amendments, restatements, modifications, renewals, increases, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or and restrictions contained in the such amendments, restatements, modifications, renewals, increases, supplements, refundings, replacements or refinancings are not in the good faith judgment of an Officer of the Company materially more restrictive, taken as a whole, with respect to such dividend dividend, distribution and other payment restrictions than those contained in those agreements on the date of this IndentureIssue Date, as determined in good faith by the Company;
(2) this Indenture, the Notes and the Note Guarantees;
(3) agreements governing other Indebtedness permitted to be incurred under the provisions of Section 4.09 hereof and any amendments, restatements, modifications, renewals, increases, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or and restrictions contained therein are in the reasonable good faith judgment of an Officer of the Company, either (a) not materially more restrictive, taken as a whole, than those contained in this Indenture, the Notes and the Note Guarantees or the Senior Credit Agreement Facility as in effect on the date of this Indenture or (b) not reasonably likely to have a material adverse effect on Issue Date, whichever is more restrictive, as determined in good faith by the ability of the Company to make required payments on the NotesCompany;
(4) any directly or indirectly applicable law, statute, rule, regulation regulation, order, approval, governmental license, permit, requirement or ordersimilar restriction or any guideline, interpretation, directive, request (whether or not having the force of law) from or of, or any plan, memorandum or agreement with, any regulatory authority;
(5) any instrument governing Indebtedness or Capital Stock of a Person acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness or Capital Stock was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, and any amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings thereof; provided, that the encumbrances and restrictions in any such amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings are, in the reasonable good faith judgment of an Officer of the Company, no more restrictive, taken as a whole, than those in effect on the date of the acquisition; provided further, that, in the case of Indebtedness, such Indebtedness was permitted not prohibited by the terms of this Indenture hereof to be incurred;
(6) customary non-assignment provisions in Hydrocarbon purchase and sale or exchange agreements for Hydrocarbons, agreements of the types described in Permitted Liens clause (17) or similar operational agreements agreements, or in licenses, easements easements, leases or leasesother contracts commonly used in a Permitted Business, in each case, entered into in the ordinary course of businessincluding Farm-In Agreements and Farm-Out Agreements;
(7) agreements governing purchase money obligations for property acquired in the ordinary course of business and Capital Finance Lease Obligations that impose restrictions on the property purchased or leased of the nature described in clause (3Section 4.08(a)(3) of Section 4.08(a)hereof;
(8) any agreement for the sale or other disposition of a Restricted Subsidiary or any assets thereof that restricts distributions by that Restricted Subsidiary pending its such sale or other disposition;
(9) agreements governing Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, in the reasonable good faith judgment of an Officer of the Company, are not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced, as determined in good faith by the Company;
(10) Liens permitted to be incurred under the provisions of Section 4.12 hereof that limit the right of the debtor to dispose of the assets subject to such Liens;
(11) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements, shareholders’ agreements, partnership agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment) entered into with in the approval ordinary course of the Company’s Board of Directorsbusiness, which limitation is applicable only to the assets or properties that are the subject of such agreements;
(12) encumbrances or restrictions applicable only to a Restricted Subsidiary that is not a Domestic Subsidiary;
(13) any agreement with respect to any property or asset acquired after the Issue Date (including by merger, consolidation or amalgamation) as in effect at the time of such acquisition (except to the extent such agreement was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any property or assets other than the property or assets so acquired;
(14) Hedging Obligations or Treasury Management Arrangements;
(15) encumbrances or restrictions on cash cash, Cash Equivalents or other deposits or net worth requirements imposed by customers or lessors under leases or other contracts or leases entered into in the ordinary course of business;
(14) customary encumbrances and restrictions contained in agreements of the types described in the definition of Permitted Business Investments;
(15) agreements governing Hedging Obligations incurred in the ordinary course of business; andor
(16) any encumbrance or restriction with respect to an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not customary restrictions set forth in “lock up” agreements entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Unrestricted Subsidiaryconnection with securities offerings. In each case set forth above, notwithstanding any stated limitation on the assets or property that may be subject to such encumbrance or restriction, an encumbrance or restriction on a specified asset or property or group or type of assets or property may also apply to all improvements, additions, repairs, attachments or and accessions thereto, construction thereon, assets and property affixed or appurtenant thereto, parts, replacements and substitutions therefor, therefor and all products and proceeds thereof, including dividends, distributions, interest and increases in respect thereof.
Appears in 2 contracts
Sources: Indenture (Chord Energy Corp), Indenture (Chord Energy Corp)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company Issuer will not, and will not permit any of its Restricted Subsidiaries that are not Guarantors to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary that is not a Guarantor to:
(1) pay dividends or make any other distributions on its Capital Stock to the Company Issuer or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Company Issuer or any of its Restricted Subsidiaries; provided that the priority that any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends, distributions or liquidating distributions before dividends, distributions or liquidating distributions are paid in respect of common stock of such Restricted Subsidiary shall not constitute a restriction on the ability to make dividends or distributions on Capital Stock for purposes of this Section 4.08;
(2) make loans or advances to the Company Issuer or any of its Restricted Subsidiaries (it being understood that the subordination of loans or advances made to the Company or any of its Restricted Subsidiaries to other Indebtedness incurred by the Company or any of its Restricted Subsidiaries shall not be deemed a restriction on the ability to make loans or advances)Subsidiaries; or
(3) sell, lease or transfer any of its properties or assets to the Company Issuer or any of its Restricted Subsidiaries.
(b) The restrictions in Section 4.08(a) hereof will not apply to encumbrances or restrictions existing under or by reason of:
(1) agreements governing Existing Indebtedness and contractual encumbrances or restrictions of the Credit Agreement as Issuer or any of its Restricted Subsidiaries (i) in effect on the date of this Indenture and any amendments, restatements, modifications, renewals, supplements, refundings, replacements Issue Date or refinancings of those agreements; provided that (ii) pursuant to the encumbrances or restrictions contained in the amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are not in the good faith judgment of an Officer of the Company materially more restrictive, taken as a whole, with respect to such dividend New Credit Agreements and other payment restrictions than those contained in those agreements on documents relating to the date of this IndentureNew Credit Agreements, related swap contracts and Indebtedness permitted pursuant to Section 4.09(b)(2);
(2) this Unsecured Indenture, the Unsecured Notes, the Unsecured Note Guarantees (and any Additional Unsecured Notes and related guarantees) and the Secured Indenture, the Secured Notes and the Secured Note GuaranteesGuarantees (and any Additional Secured Notes (as defined in the Secured Indenture) and related guarantees) and any other documents relating to this Unsecured Indenture or the Secured Indenture;
(3) agreements governing other Indebtedness Indebtedness, Disqualified Stock or preferred stock permitted to be incurred under the provisions of Section 4.09 hereof and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained therein are in the reasonable good faith judgment of an Officer of the Company, either (ai) are not materially more restrictive, taken as a whole, restrictive than those contained in this Indenture, the Notes and the Note Guarantees or the Credit Agreement as agreements governing Indebtedness in effect on the date of this Indenture Issue Date, or (bii) are not reasonably likely materially more disadvantageous to have a material adverse effect on the ability Holders of the Company Unsecured Notes than is customary in comparable financings (as determined by the Issuer in good faith, which determination shall be conclusive) and in the case of subclause (ii) either (x) the Issuer determines (in good faith) that such encumbrance or restriction will not affect the Issuer’s ability to make required principal or interest payments on the NotesUnsecured Notes or (y) such encumbrances or restrictions apply only during the continuance of a default in respect of payment or a financial maintenance covenant relating to such Indebtedness;
(4) applicable law, rule, regulation regulation, order, approval, license, permit or ordersimilar restriction;
(5) any instrument governing Indebtedness or Capital Stock of a Person acquired by by, or merged, amalgamated or consolidated with or into, the Company Issuer or any of its Restricted Subsidiaries as in effect at the time of such acquisition or at the time it merges with or into the Issuer or any Restricted Subsidiary (except to the extent such Indebtedness or Capital Stock instrument was incurred entered into in connection with or in contemplation of such acquisitionthereof), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, and any amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements acquired or refinancings thereof; provided, that the encumbrances and restrictions in any such amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings are, in the reasonable good faith judgment of an Officer of the Company, no more restrictive, taken as a whole, than those in effect on the date of the acquisitiondesignated; provided further, that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Unsecured Indenture to be incurred;
(6) customary non-assignment or sub-letting provisions in Hydrocarbon purchase and sale or exchange agreements or similar operational agreements or in licensescontracts, easements or leases, in each casesub-leases, licenses and sub-licenses entered into in the ordinary course of business;
(7) purchase money obligations for property acquired in the ordinary course of business obligations, mortgage financings and Capital Lease Obligations that impose restrictions on the property purchased or leased of the nature described in clause (3) of Section 4.08(a)) hereof;
(8) contracts for the sale or other disposition of Capital Stock or assets, including any agreement for the sale or other disposition of a Restricted Subsidiary of all or substantially all of the assets of such Restricted Subsidiary in compliance with the terms of this Unsecured Indenture that restricts distributions by that Restricted Subsidiary pending its such sale or other disposition;
(9) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, in the reasonable good faith judgment of an Officer of the Company, are not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(10) Secured Indebtedness otherwise permitted to be incurred pursuant to Section 4.09 hereof and Liens permitted to be incurred under pursuant to the provisions of Section 4.12 that limit the right of the debtor to dispose of the assets subject to such Lienshereof;
(11) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements agreements, shareholder agreements, limited liability company organizational documents and other similar agreements (including agreements entered into in connection with a Restricted Investment) entered into with the approval of the Company’s Board of DirectorsPermitted Investment or pursuant to Section 4.07 hereof), which limitation is applicable only to the assets that are the subject of such agreements;
(12) encumbrances or restrictions applicable only to a Restricted Subsidiary that is not a Domestic Subsidiary;
(13) encumbrances or restrictions on cash cash, Cash Equivalents or other deposits or net worth imposed by customers or lessors under contracts or leases entered into in the ordinary course of business;
(13) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(14) customary encumbrances Restricted Payments that do not violate the provisions of Section 4.07 hereof and restrictions contained in agreements of the types described in the definition of any Permitted Business InvestmentsInvestment;
(15) agreements governing Hedging Obligations incurred any encumbrance or restriction of a Securitization Entity effected in the ordinary course of businessconnection with a Qualified Securitization Transaction; andprovided, however, that such restrictions apply only to such Securitization Entity;
(16) other Indebtedness, Disqualified Stock or preferred stock of Non-Guarantor Subsidiaries that is incurred or issued subsequent to the Issue Date pursuant to Section 4.09 hereof;
(17) any encumbrance or restriction with respect to an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became a Restricted SubsidiarySubsidiary of the Issuer; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary of the Issuer and any such encumbrance or restriction does not extend to any assets or property of the Company or Issuer of any other Restricted Subsidiary other than the assets and property of such Unrestricted Subsidiary. In each case set forth above, notwithstanding any stated limitation ;
(18) provisions with respect to the receipt of a rebate on the assets an operating lease until all obligations due to a lessor on other operating leases are satisfied or property that may be subject to such encumbrance or restriction, an encumbrance or restriction on a specified asset or property or group or type other customary restrictions in respect of assets or contract rights acquired by a Restricted Subsidiary of the Issuer in connection with a Sale/Leaseback Transaction;
(19) encumbrances and restrictions contained in contracts entered into in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property may also apply or assets of the Issuer or any Restricted Subsidiary of the Issuer or the ability of the Issuer or such Restricted Subsidiary to all improvementsrealize such value, additionsor to make any distributions relating to such property or assets in each case in any material respect; and
(20) any encumbrances or restrictions of the type referred to in Sections 4.08(a)(1), repairs(2) and (3) hereof imposed by any amendments, attachments or accessions theretomodifications, assets and property affixed or appurtenant theretorestatements, partsrenewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (1) through (19) above; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Issuer, not materially more restrictive as a whole with respect to such dividend and substitutions thereforother payment restrictions than those contained in the dividend or other payment restrictions prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing. For purposes of determining compliance with this Section 4.08, (i) the priority of any preferred stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common shares shall not be deemed a restriction on the ability to make distributions on Capital Stock and all products and proceeds thereof, including dividends, distributions, interest and increases in respect thereof(ii) the subordination of loans or advances made to the Issuer or any of its Restricted Subsidiaries to other Indebtedness incurred by the Issuer or any such Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances.
Appears in 2 contracts
Sources: Indenture (McGraw Hill, Inc.), Indenture (McGraw Hill, Inc.)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company will Anvil shall not, and will shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
to (1i) (a) pay dividends or make any other distributions on its Capital Stock to the Company Anvil or any of its Restricted Subsidiaries, Subsidiaries (1) on its Capital Stock or (2) with respect to any other interest or participation in, or measured by, its profits, or (b) pay any Indebtedness owed to the Company Anvil or any of its Restricted Subsidiaries; provided that the priority that any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends, distributions or liquidating distributions before dividends, distributions or liquidating distributions are paid in respect of common stock of such Restricted Subsidiary shall not constitute a restriction on the ability to make dividends or distributions on Capital Stock for purposes of this Section 4.08;
(2ii) make loans or advances to the Company Anvil or any of its Restricted Subsidiaries or (it being understood that the subordination of loans or advances made to the Company or any of its Restricted Subsidiaries to other Indebtedness incurred by the Company or any of its Restricted Subsidiaries shall not be deemed a restriction on the ability to make loans or advances); or
(3iii) sell, lease or transfer any of its properties or assets to the Company Anvil or any of its Restricted Subsidiaries.
(b) The restrictions in Section 4.08(a) hereof will not apply to , except for such encumbrances or restrictions existing under or by reason of:
of (1a) agreements governing Existing Indebtedness and the Credit Agreement as in effect on the date of this Indenture Indenture, (b) the New Credit Agreement as in effect as of the date of this Indenture, and any amendments, modifications, restatements, modificationsrenewals, renewalsincreases, supplements, refundings, replacements or refinancings of those agreementsthereof; provided provided, that the encumbrances or restrictions contained in the such amendments, modifications, restatements, modificationsrenewals, renewalsincreases, supplements, refundings, replacements or refinancings are not in the good faith judgment of an Officer of the Company materially no more restrictive, taken as a whole, restrictive with respect to such dividend and other payment restrictions than those contained in those agreements on the date of this Indenture;
(2) this Indenture, the Notes and the Note Guarantees;
(3) agreements governing other Indebtedness permitted to be incurred under the provisions of Section 4.09 hereof and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained therein are in the reasonable good faith judgment of an Officer of the Company, either (a) not materially more restrictive, taken as a whole, than those contained in this Indenture, the Notes and the Note Guarantees or the New Credit Agreement as in effect on the date of this Indenture, (c) this Indenture or and the Senior Notes, (bd) not reasonably likely to have a material adverse effect on the ability Senior Preferred Stock, the Certificate of Designations, the Company to make required payments on Exchange Debentures and the Notes;
Exchange Debenture Indenture, (4e) applicable law, rule, regulation or order;
(5f) any instrument governing Acquired Indebtedness or Capital Stock of a Person acquired by the Company Anvil or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Acquired Indebtedness or Capital Stock was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, and any amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings thereof; provided, that the encumbrances and restrictions Consolidated EBITDA of such Person is not taken into account in any determining whether such amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings are, in the reasonable good faith judgment of an Officer of the Company, no more restrictive, taken as a whole, than those in effect on the date of the acquisition; provided further, that, in the case of Indebtedness, such Indebtedness acquisition was permitted by the terms of this Indenture to be incurred;
Indenture, (6g) by reason of customary non-assignment provisions in Hydrocarbon purchase leases and sale or exchange agreements or similar operational agreements or in licenses, easements or leases, in each case, licenses entered into in the ordinary course of business;
business and consistent with past practices, (7h) purchase money obligations for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on the property purchased or leased of the nature described in clause (3iii) above on the property so acquired, (i) agreements relating to the financing of Section 4.08(a);
the acquisition of real or tangible personal property acquired after the date of this Indenture; provided, that such encumbrance or restriction relates only to the property which is acquired and in the case of any encumbrance or restriction that constitutes a Lien, such Lien constitutes a Purchase Money Lien, (8) j) any agreement for the sale restriction or other disposition of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(9) Permitted Refinancing Indebtedness; provided that the restrictions encumbrance contained in the agreements governing such Permitted Refinancing Indebtedness are, contracts for sale of assets permitted by this Indenture in the reasonable good faith judgment of an Officer of the Company, not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(10) Liens permitted to be incurred under the provisions of Section 4.12 that limit the right of the debtor to dispose respect of the assets subject being sold pursuant to such Liens;
contract or (11k) provisions limiting the disposition Indebtedness or distribution other contractual requirements of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into a Securitization Entity in connection with a Restricted Investment) entered into with the approval of the Company’s Board of Directors, which limitation is applicable only to the assets that are the subject of such agreements;
(12) encumbrances or restrictions applicable only to a Restricted Subsidiary that is not a Domestic Subsidiary;
(13) encumbrances or restrictions on cash or other deposits or net worth imposed by customers or lessors under contracts or leases entered into in the ordinary course of business;
(14) customary encumbrances and restrictions contained in agreements of the types described in the definition of Permitted Business Investments;
(15) agreements governing Hedging Obligations incurred in the ordinary course of business; and
(16) any encumbrance or restriction with respect to an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became a Restricted SubsidiaryQualified Securitization Transaction; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Unrestricted Subsidiary. In each case set forth above, notwithstanding any stated limitation on the assets or property that may be subject restrictions apply only to such encumbrance or restriction, an encumbrance or restriction on a specified asset or property or group or type of assets or property may also apply to all improvements, additions, repairs, attachments or accessions thereto, assets and property affixed or appurtenant thereto, parts, replacements and substitutions therefor, and all products and proceeds thereof, including dividends, distributions, interest and increases in respect thereofSecuritization Entity.
Appears in 2 contracts
Sources: Indenture (Cottontops Inc), Indenture (Anvil Holdings Inc)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, to create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock to the Company or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Company or any of its Restricted Subsidiaries; provided that (i) the priority that any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends, distributions dividends or liquidating distributions before dividends, distributions dividends or liquidating distributions are paid in respect of common stock of such Restricted Subsidiary shall not constitute a restriction on the ability to make dividends or distributions on Capital Stock for purposes of this Section 4.08covenant and (ii) the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness incurred by the Company or any Restricted Subsidiary shall be deemed not to be a restriction on the ability to make payments with respect to such loans or advances;
(2) make loans or advances to the Company or any of its Restricted Subsidiaries (it being understood that the subordination of loans or advances made to the Company or any of its Restricted Subsidiaries Subsidiary to other Indebtedness incurred by the Company or any of its Restricted Subsidiaries Subsidiary shall not be deemed not to be a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its properties or assets to the Company or any of its Restricted Subsidiaries.
(b) The restrictions in Section 4.08(a) hereof will not apply to encumbrances or restrictions existing under or by reason of:
(1) agreements governing Existing Indebtedness and the Credit Agreement and other agreements as in effect on the date of this Indenture hereof and any amendments, restatements, modifications, renewals, increases, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or and restrictions contained in the such amendments, restatements, modifications, renewals, increases, supplements, refundings, replacements or refinancings are not in the good faith judgment of an Officer of the Company materially more restrictive, taken as a whole, with respect to such dividend dividend, distribution and other payment restrictions than those contained in those agreements on the date of this Indenturehereof, as determined in good faith by the Company;
(2) this Indenture, the Notes and the Note Guarantees;
(3) agreements governing other Indebtedness permitted to be incurred under the provisions of Section 4.09 hereof and any amendments, restatements, modifications, renewals, increases, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or and restrictions contained therein are in the reasonable good faith judgment of an Officer of the Company, either (a) not materially more restrictive, taken as a whole, than those contained in this Indenture, the Notes and the Note Guarantees or the Credit Agreement as in effect on the date of this Indenture or (b) not reasonably likely to have a material adverse effect on hereof, whichever is more restrictive, as determined in good faith by the ability of the Company to make required payments on the NotesCompany;
(4) directly or indirectly applicable law, statute, rule, regulation regulation, order, approval, governmental license, permit, requirement or ordersimilar restriction or any guideline, interpretation, directive, request (whether or not having the force of law) from or of, or any plan, memorandum or agreement with, any regulatory authority;
(5) any instrument governing Indebtedness or Capital Stock of a Person acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness or Capital Stock was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, and any amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings thereof; provided, that the encumbrances and restrictions in any such amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings are, in the reasonable good faith judgment of an Officer of the Company, no more restrictive, taken as a whole, than those in effect on the date of the acquisition; provided further, that, in the case of Indebtedness, such Indebtedness was permitted not prohibited by the terms of this Indenture hereof to be incurred;
(6) customary non-assignment provisions in Hydrocarbon purchase and sale or exchange agreements for Hydrocarbons, agreements of the types described in Permitted Business Investments or similar operational agreements agreements, or in licenses, easements easements, leases or leases, in each case, entered into in the ordinary course of businessother contracts;
(7) agreements governing purchase money obligations for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on the property purchased or leased of the nature described in clause (3Section 4.08(a)(3) of Section 4.08(a)hereof;
(8) any agreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(9) agreements governing Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, in the reasonable good faith judgment of an Officer of the Company, are not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced, as determined in good faith by the Company;
(10) Liens permitted to be incurred under the provisions of Section 4.12 hereof that limit the right of the debtor to dispose of the assets subject to such Liens;
(11) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements, shareholders’ agreements, partnership agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment) entered into with in the approval ordinary course of the Company’s Board of Directorsbusiness, which limitation is applicable only to the assets or properties that are the subject of such agreements;
(12) encumbrances or restrictions applicable only to a Restricted Subsidiary that is not a Domestic Subsidiary;
(13) any agreement with respect to any property or asset acquired after the date hereof (including by merger or consolidation) as in effect at the time of such acquisition (except to the extent such agreement was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any property or assets other than the property or assets so acquired;
(14) Hedging Obligations;
(15) encumbrances or restrictions on cash, cash equivalents or other deposits or net worth requirements imposed by customers or lessors under leases or other contracts or leases entered into in the ordinary course of business;
(1416) customary encumbrances and restrictions contained set forth in “lock up” agreements of the types described entered into in the definition of Permitted Business Investments;connection with securities offerings; or
(15) agreements governing Hedging Obligations incurred in the ordinary course of business; and
(1617) any encumbrance or restriction with respect contained in agreements governing or relating to an Unrestricted Subsidiary pursuant to reserves that are the subject of any Production Payment or by reason of an agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Unrestricted SubsidiaryReserve Sale. In each case set forth above, notwithstanding any stated limitation on the assets or property that may be subject to such encumbrance or restriction, an encumbrance or restriction on a specified asset or property or group or type of assets or property may also apply to all improvements, additions, repairs, attachments or and accessions thereto, construction thereon, assets and property affixed or appurtenant thereto, parts, replacements and substitutions therefor, therefor and all products and proceeds thereof, including dividends, distributions, interest and increases in respect thereof.
Appears in 2 contracts
Sources: Indenture (Diamondback Energy, Inc.), Indenture (Diamondback Energy, Inc.)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock to the Company or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness or other obligations owed to the Company or any of its Restricted Subsidiaries; provided that the priority that any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends, distributions or liquidating distributions before dividends, distributions or liquidating distributions are paid in respect of common stock of such Restricted Subsidiary shall not constitute a restriction on the ability to make dividends or distributions on Capital Stock for purposes of this Section 4.08;
(2) make loans or advances to the Company or any of its Restricted Subsidiaries (it being understood that the subordination of loans or advances made to the Company or any of its Restricted Subsidiaries to other Indebtedness incurred by the Company or any of its Restricted Subsidiaries shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its properties or assets to the Company or any of its Restricted Subsidiaries.
(b) The restrictions in Section 4.08(a) hereof will not apply to encumbrances or restrictions existing under or by reason of:
(1) agreements governing Existing Indebtedness and the Credit Agreement as in effect on the date of this Indenture and any amendments, restatements, modifications, renewals, increases, supplements, refundings, replacements or refinancings of those agreementsagreements or the Indebtedness to which they relate; provided that the encumbrances or restrictions contained in the amendments, restatements, modifications, renewals, increases, supplements, refundings, replacements or refinancings are not in the good faith judgment of an Officer of the Company materially more restrictive, taken as a whole, with respect to such dividend dividend, distribution and other payment restrictions than those contained in those agreements on the date of this Indenture;
(2) this Indenture, the Notes and the Note Subsidiary Guarantees;
(3) agreements governing other Indebtedness permitted to be incurred under the provisions of Section 4.09 hereof and any amendmentsApplicable Law, restatementsrule, modificationsregulation, renewalsorder, supplementsapproval, refundingslicense, replacements permit or refinancings of those agreements; provided that the encumbrances or restrictions contained therein are in the reasonable good faith judgment of an Officer of the Company, either (a) not materially more restrictive, taken as a whole, than those contained in this Indenture, the Notes and the Note Guarantees or the Credit Agreement as in effect on the date of this Indenture or (b) not reasonably likely to have a material adverse effect on the ability of the Company to make required payments on the Notessimilar restriction;
(4) applicable law, rule, regulation or order;
(5) any instrument governing Indebtedness or Capital Stock of a Person acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness or Capital Stock was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, and any amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings thereof; provided, that the encumbrances and restrictions in any such amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings are, in the reasonable good faith judgment of an Officer of the Company, no more restrictive, taken as a whole, than those in effect on the date of the acquisition; provided further, that, in the case of Indebtedness, such Indebtedness was otherwise permitted by the terms of this Indenture to be incurred;
(65) customary non-assignment provisions in Hydrocarbon purchase and sale or exchange agreements or similar operational agreements or in licenses, easements or leases, in each case, entered into in the ordinary course of business;
(76) Capital Lease Obligations, mortgage financings or purchase money obligations obligations, in each case for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on the that property purchased or leased of the nature described in clause (3) of Section 4.08(a);
(8) 7) any agreement for the sale or other disposition of a Restricted Subsidiary of the Company that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(9) 8) Permitted Refinancing Indebtedness; , provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, in the reasonable good faith judgment of an Officer of the Company, are not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(109) Liens securing Indebtedness otherwise permitted to be incurred under the provisions of Section 4.12 that limit the right of the debtor to dispose of the assets subject to such Liens;
(1110) provisions limiting with respect to the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements described in the definition of “Permitted Business Investments,” entered into in connection with a Restricted Investmentthe ordinary course of business;
(11) entered into with any agreement or instrument relating to any property or assets acquired after the approval date of the Company’s Board of Directorsthis Indenture, which limitation is applicable so long as such encumbrance or restriction relates only to the property or assets that are the subject so acquired and is not and was not created in anticipation of such agreementsacquisitions;
(12) encumbrances or restrictions applicable only to a Restricted Subsidiary that is not a Domestic Subsidiary;
(13) encumbrances or restrictions on cash cash, Cash Equivalents or other deposits or net worth imposed by customers or lessors under contracts or leases entered into in the ordinary course of business;
(13) the issuance of preferred securities by a Restricted Subsidiary of the Company or the payment of dividends thereon in accordance with the terms thereof; provided that issuance of such preferred securities is permitted pursuant to Section 4.09 and the terms of such preferred securities do not expressly restrict the ability of such Restricted Subsidiary to pay dividends or make any other distributions on its Capital Stock (other than requirements to pay dividends or liquidation preferences on such preferred securities prior to paying any dividends or making any other distributions on such other Capital Stock);
(14) customary encumbrances and restrictions in the case of any Foreign Subsidiary, any encumbrance or restriction contained in agreements the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was incurred if either (a) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant in such Indebtedness or agreement or (b) the Company determines that any such encumbrance or restriction will not materially affect the Company’s ability to make principal or interest payments on the Notes, as determined in good faith by the Board of Directors of the types described in the definition of Permitted Business Investments;Company, whose determination shall be conclusive; and
(15) agreements governing Hedging Obligations other Indebtedness permitted to be incurred in the ordinary course under Section 4.09 and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of business; and
(16) any encumbrance or restriction with respect to an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiarythose agreements; provided that such agreement was the restrictions therein are not entered into materially more restrictive, taken as a whole, than those contained in anticipation of this Indenture, the Unrestricted Notes and the Subsidiary becoming a Restricted Subsidiary and any such encumbrance Guarantees or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Unrestricted Subsidiary. In each case set forth above, notwithstanding any stated limitation Credit Agreement as in effect on the assets or property that may be subject to such encumbrance or restriction, an encumbrance or restriction on a specified asset or property or group or type date of assets or property may also apply to all improvements, additions, repairs, attachments or accessions thereto, assets and property affixed or appurtenant thereto, parts, replacements and substitutions therefor, and all products and proceeds thereof, including dividends, distributions, interest and increases in respect thereofthis Indenture.
Appears in 2 contracts
Sources: Indenture (Legacy Reserves Inc.), Indenture (Legacy Reserves Lp)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company will not, and will not cause or permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or permit otherwise cause to exist come into existence or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions distribution on its Capital Stock to the Company or any Restricted Subsidiary (it being understood that the priority of its Restricted Subsidiaries, any Preferred Stock in receiving dividends or with respect liquidating distributions prior to any other interest dividends or participation in, liquidating distributions being paid on common stock shall not be deemed a restriction on the ability to pay dividends or measured by, its profits, or make distributions on Capital Stock),
(2) pay any Indebtedness owed to the Company or any of its other Restricted Subsidiaries; provided Subsidiary (it being understood that the priority that subordination of Indebtedness owed to the Company or any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends, distributions to other Indebtedness owed by the Company or liquidating distributions before dividends, distributions or liquidating distributions are paid in respect of common stock of such any Restricted Subsidiary shall not constitute be deemed a restriction on the ability to make dividends or distributions on Capital Stock for purposes of this Section 4.08;pay such Indebtedness),
(23) make loans or advances to the Company or any of its other Restricted Subsidiaries Subsidiary (it being understood that the subordination of loans or advances made to by the Company or any of its Restricted Subsidiaries Subsidiary to other Indebtedness incurred by the Company or any of its Restricted Subsidiaries Subsidiary shall not be deemed a restriction on the ability to make loans or advances); , or
(34) sell, lease or transfer any of its properties or assets to the Company or any of its other Restricted SubsidiariesSubsidiary.
(b) The restrictions in However, Section 4.08(a4.13(a) hereof will not apply to encumbrances prohibit any encumbrance or restrictions restriction created, existing or becoming effective under or by reason of:
(1) agreements any agreement (including the Senior Credit Agreement, the indentures governing the Existing Indebtedness Senior Notes and the Credit Agreement as Concurrently-Issued Senior Notes and this Supplemental Indenture) in effect on the date of this Indenture and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained in the amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are not in the good faith judgment of an Officer of the Company materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements on the date of this IndentureIssue Date;
(2) this Indentureany agreement or instrument with respect to a Restricted Subsidiary that is not a Restricted Subsidiary on the Issue Date, in existence at the time such Person becomes a Restricted Subsidiary and not incurred in connection with, or in contemplation of, such Person becoming a Restricted Subsidiary; provided that such encumbrances and restrictions are not applicable to, or to the properties or assets of, the Notes and the Note GuaranteesCompany or any Restricted Subsidiary other than such Subsidiary which is becoming a Restricted Subsidiary;
(3) agreements any agreement or instrument governing any Acquired Debt or other Indebtedness permitted to be incurred under the provisions agreement of Section 4.09 hereof and any amendmentsentity merged into or consolidated with, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained therein are in the reasonable good faith judgment of an Officer of the Company, either (a) not materially more restrictive, taken as a whole, than those contained in this Indenture, the Notes and the Note Guarantees or the Credit Agreement as in effect on the date assets of this Indenture or (b) not reasonably likely to have a material adverse effect on the ability of the Company to make required payments on the Notes;
(4) applicable lawwhich are acquired by, rule, regulation or order;
(5) any instrument governing Indebtedness or Capital Stock of a Person acquired by the Company or any of its Restricted Subsidiaries Subsidiary, so long as in effect at the time of such acquisition encumbrance or restriction (except to the extent such Indebtedness or Capital Stock A) was incurred in connection with or not entered into in contemplation of such the acquisition), which encumbrance merger or restriction consolidation transaction, and (B) is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets or subsidiaries of the Person, so acquired, so long as the agreement containing such restriction does not violate any other provision of this Supplemental Indenture;
(4) any applicable law or any requirement of any regulatory body;
(5) customary restrictions and conditions contained in the security documents evidencing any amendmentsLiens securing obligations or Indebtedness or agreements relating to Capital Lease Obligations (provided that such Liens are otherwise permitted to be incurred under the provisions of Section 4.10 and such restrictions and conditions are not created for the purpose of avoiding the restrictions imposed by this Section 4.13) that limit the right of the debtor or lessee to dispose of the assets subject to such Liens;
(6) provisions restricting subletting or assignment of any lease governing a leasehold interest (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties) of the Company or any Restricted Subsidiary, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings thereof; provided, that the encumbrances and restrictions in any licenses (including licenses of intellectual property) relating to the property covered thereby, or other encumbrances or restrictions in agreements or instruments relating to specific assets or property that restrict generally the transfers of such amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements assets or refinancings are, in property; provided that such encumbrances or restrictions do not materially impact the reasonable good faith judgment of an Officer ability of the Company, no more restrictive, taken as a whole, than those in effect Company to permit payments on the date of the acquisition; provided further, that, in the case of Indebtedness, such Indebtedness was permitted Notes when due as required by the terms of this Indenture to be incurredSupplemental Indenture;
(67) customary non-assignment provisions in Hydrocarbon purchase and agreements with respect to asset sales, including the sale or exchange other disposition of all or substantially all the Capital Stock of a Restricted Subsidiary, permitted to be made under the provisions of Section 4.11 that limit the transfer of such assets or assets of such Restricted Subsidiary (or distribution on such Capital Stock) pending the closing of such sale;
(8) shareholders’, partnership, joint venture and similar agreements entered into in the ordinary course of business; provided that such encumbrances or restrictions do not apply to any Restricted Subsidiaries other than the applicable company, partnership, joint venture or other entity;
(9) cash, Cash Equivalents or other deposits, or net worth requirements or similar operational agreements requirements, imposed by suppliers, landlords or in licenses, easements or leases, in each case, customers under contracts entered into in the ordinary course of business;
(710) purchase money obligations for property acquired any Credit Facility or agreement governing Indebtedness of the Company or any Restricted Subsidiary permitted to be incurred under the provisions of Section 4.07; provided that such encumbrances or restrictions are not materially more restrictive, taken as a whole, as determined by the Company in good faith, than those contained in the ordinary course of business Senior Credit Agreement, in the indentures governing the Existing Senior Notes and Capital Lease Obligations that impose restrictions the Concurrently-Issued Senior Notes or in this Supplemental Indenture as in effect on the property purchased or leased Issue Date;
(11) restrictions of the nature described in clause (34) of Section 4.08(a4.13(a) by reason of customary non-assignment provisions in Hydrocarbon purchase or sale or exchange contracts, agreements, licenses and leases entered into in the ordinary course of business;
(12) Commodity Agreements, Currency Agreements or Interest Rate Agreements permitted from time to time under this Supplemental Indenture;
(13) any Preferred Stock issued by a Restricted Subsidiary; provided that the issuance of such Preferred Stock is permitted pursuant to Section 4.07 and the terms of such Preferred Stock do not expressly restrict the ability of such Restricted Subsidiary to pay dividends or make any other distributions on its Capital Stock (other than requirements to pay dividends or liquidation preferences on such Preferred Stock prior to paying any dividends or making any other distributions on such other Capital Stock);
(8) any agreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(914) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, in the reasonable good faith judgment of an Officer of the Company, not materially are no more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinancedRefinanced;
(10) Liens permitted to be incurred under the provisions of Section 4.12 that limit the right of the debtor to dispose of the assets subject to such Liens;
(11) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment) entered into with the approval of the Company’s Board of Directors, which limitation is applicable only to the assets that are the subject of such agreements;
(1215) encumbrances or and restrictions applicable only to a Restricted Subsidiary that is not a Domestic Subsidiary;
(13) encumbrances or restrictions on cash or other deposits or net worth imposed by customers or lessors under contained in contracts or leases entered into in the ordinary course of business;
(14) customary encumbrances , not relating to any Indebtedness, and restrictions contained that do not, individually or in agreements the aggregate, detract from the value of, or from the ability of the types described Company and the Restricted Subsidiaries to realize the value of, property or assets of the Company or any Restricted Subsidiary in any manner material to the definition of Permitted Business Investments;
(15) agreements governing Hedging Obligations incurred in the ordinary course of businessCompany or any Restricted Subsidiary; and
(16) any encumbrance agreement, amendment, modification, restatement, extension, renewal, supplement, refunding, replacement or restriction with respect to an Unrestricted Subsidiary pursuant to Refinancing that amends, modifies, restates, extends, renews, refunds, replaces or by reason of an agreement that Refinances the Unrestricted Subsidiary is a party to agreements containing the encumbrances or entered into before restrictions in the date on which such Unrestricted Subsidiary became a Restricted Subsidiaryforegoing clauses (1) through (15), or in this clause (16); provided that such agreement was not entered into in anticipation the terms and conditions of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance encumbrances or restriction does not extend to restrictions are no more restrictive in any assets or property of material respect taken as a whole, as determined by the Company in good faith, than those under or any other Restricted Subsidiary other than pursuant to the assets and property of such Unrestricted Subsidiary. In each case set forth aboveagreement so amended, notwithstanding any stated limitation on the assets modified, restated, extended, renewed, refunded, replaced or property that may be subject to such encumbrance or restriction, an encumbrance or restriction on a specified asset or property or group or type of assets or property may also apply to all improvements, additions, repairs, attachments or accessions thereto, assets and property affixed or appurtenant thereto, parts, replacements and substitutions therefor, and all products and proceeds thereof, including dividends, distributions, interest and increases in respect thereofRefinanced.
Appears in 2 contracts
Sources: Third Supplemental Indenture (Laredo Petroleum, Inc.), Fourth Supplemental Indenture (Laredo Petroleum, Inc.)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company Parent Guarantor will not, and will not cause or permit the Company or any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or permit otherwise cause to exist come into existence or become effective any consensual encumbrance or restriction on the ability of the Company or any Restricted Subsidiary to:
(1) pay dividends or make any other distributions distribution on its Capital Stock to the Parent Guarantor, the Company or any Restricted Subsidiary (it being understood that the priority of its Restricted Subsidiaries, any Preferred Stock in receiving dividends or with respect liquidating distributions prior to any other interest dividends or participation in, liquidating distributions being paid on common stock shall not be deemed a restriction on the ability to pay dividends or measured by, its profits, or make distributions on Capital Stock),
(2) pay any Indebtedness owed to the Parent Guarantor, the Company or any of its other Restricted Subsidiaries; provided Subsidiary (it being understood that the priority that subordination of Indebtedness owed to the Parent Guarantor, the Company or any series of Preferred Stock of a Restricted Subsidiary has in receiving dividendsto other Indebtedness owed by the Parent Guarantor, distributions the Company or liquidating distributions before dividends, distributions or liquidating distributions are paid in respect of common stock of such any Restricted Subsidiary shall not constitute be deemed a restriction on the ability to make dividends or distributions on Capital Stock for purposes of this Section 4.08;pay such Indebtedness),
(23) make loans or advances to the Parent Guarantor, the Company or any of its other Restricted Subsidiaries Subsidiary (it being understood that the subordination of loans or advances made to by the Parent Guarantor, the Company or any of its Restricted Subsidiaries Subsidiary to other Indebtedness incurred by the Parent Guarantor, the Company or any of its Restricted Subsidiaries Subsidiary shall not be deemed a restriction on the ability to make loans or advances); , or
(34) sell, lease or transfer any of its properties or assets to the Parent Guarantor, the Company or any of its other Restricted SubsidiariesSubsidiary.
(b) The restrictions in However, Section 4.08(a4.13(a) hereof will not apply to encumbrances prohibit any encumbrance or restrictions restriction created, existing or becoming effective under or by reason of:
(1) agreements governing Existing Indebtedness and any agreement (including the Senior Credit Agreement as Agreement) in effect on the date of this Indenture and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained in the amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are not in the good faith judgment of an Officer of the Company materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements on the date of this IndentureIssue Date;
(2) this Indentureany agreement or instrument with respect to a Restricted Subsidiary that is not a Restricted Subsidiary on the Issue Date, in existence at the time such Person becomes a Restricted Subsidiary and not incurred in connection with, or in contemplation of, such Person becoming a Restricted Subsidiary; provided that such encumbrances and restrictions are not applicable to, or to the properties or assets of, the Notes and Parent Guarantor, the Note GuaranteesCompany or any Restricted Subsidiary other than such Subsidiary which is becoming a Restricted Subsidiary;
(3) agreements any agreement or instrument governing any Acquired Debt or other Indebtedness permitted to be incurred under agreement of any entity merged into or consolidated with, or the provisions assets of Section 4.09 hereof and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained therein which are in the reasonable good faith judgment of an Officer of the Company, either (a) not materially more restrictive, taken as a whole, than those contained in this Indentureacquired by, the Notes and the Note Guarantees or the Credit Agreement as in effect on the date of this Indenture or (b) not reasonably likely to have a material adverse effect on the ability of the Company to make required payments on the Notes;
(4) applicable lawParent Guarantor, rule, regulation or order;
(5) any instrument governing Indebtedness or Capital Stock of a Person acquired by the Company or any of its Restricted Subsidiaries Subsidiary, so long as in effect at the time of such acquisition encumbrance or restriction (except to the extent such Indebtedness or Capital Stock A) was incurred in connection with or not entered into in contemplation of such the acquisition), which encumbrance merger or restriction consolidation transaction, and (B) is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets or subsidiaries of the Person, so acquired, so long as the agreement containing such restriction does not violate any other provision of this Indenture;
(4) any applicable law or any requirement of any regulatory body;
(5) customary restrictions and conditions contained in the security documents evidencing any amendmentsLiens securing obligations or Indebtedness or agreements relating to Capital Lease Obligations (provided that such Liens are otherwise permitted to be incurred under the provisions of Section 4.10 and such restrictions and conditions are not created for the purpose of avoiding the restrictions imposed by this Section 4.13) that limit the right of the debtor or lessee to dispose of the assets subject to such Liens;
(6) provisions restricting subletting or assignment of any lease governing a leasehold interest (including leases governing leasehold interests or farm-in agreements or farm- out agreements relating to leasehold interests in Oil and Gas Properties) of the Parent Guarantor, restatementsthe Company or any Restricted Subsidiary, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings thereof; provided, that the encumbrances and restrictions in any licenses (including licenses of intellectual property) relating to the property covered thereby, or other encumbrances or restrictions in agreements or instruments relating to specific assets or property that restrict generally the transfers of such amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements assets or refinancings are, in property; provided that such encumbrances or restrictions do not materially impact the reasonable good faith judgment of an Officer ability of the Company, no more restrictive, taken as a whole, than those in effect Company to permit payments on the date of the acquisition; provided further, that, in the case of Indebtedness, such Indebtedness was permitted Notes when due as required by the terms of this Indenture to be incurredIndenture;
(67) customary non-assignment provisions in Hydrocarbon purchase and agreements with respect to asset sales, including the sale or exchange other disposition of all or substantially all the Capital Stock of a Restricted Subsidiary, permitted to be made under the provisions of Section 4.11 that limit the transfer of such assets or assets of such Restricted Subsidiary (or distribution on such Capital Stock) pending the closing of such sale;
(8) shareholders’, partnership, joint venture and similar agreements entered into in the ordinary course of business; provided that such encumbrances or restrictions do not apply to any Restricted Subsidiaries other than the applicable company, partnership, joint venture or other entity;
(9) cash, Cash Equivalents or other deposits, or net worth requirements or similar operational agreements requirements, imposed by suppliers, landlords or in licenses, easements or leases, in each case, customers under contracts entered into in the ordinary course of business;
(710) purchase money obligations for property acquired any Credit Facility or agreement governing Indebtedness of the Parent Guarantor, the Company or any Restricted Subsidiary permitted to be incurred under the provisions of Section 4.07; provided that such encumbrances or restrictions are not materially more restrictive, taken as a whole, as determined by the Company in good faith, than those contained in the ordinary course of business and Capital Lease Obligations that impose restrictions Senior Credit Agreement or in this Indenture as in effect on the property purchased or leased Issue Date;
(11) restrictions of the nature described in clause (34) of Section 4.08(a4.13(a) by reason of customary non-assignment provisions in Hydrocarbon purchase or sale or exchange contracts, agreements, licenses and leases entered into in the ordinary course of business;
(12) Commodity Agreements, Currency Agreements or Interest Rate Agreements permitted from time to time under this Indenture;
(13) any Preferred Stock issued by the Company or a Restricted Subsidiary; provided that the issuance of such Preferred Stock is permitted pursuant to Section 4.07 and the terms of such Preferred Stock do not expressly restrict the ability of the Company or such Restricted Subsidiary to pay dividends or make any other distributions on its Capital Stock (other than requirements to pay dividends or liquidation preferences on such Preferred Stock prior to paying any dividends or making any other distributions on such other Capital Stock);
(8) any agreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(914) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, in the reasonable good faith judgment of an Officer of the Company, not materially are no more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinancedRefinanced;
(10) Liens permitted to be incurred under the provisions of Section 4.12 that limit the right of the debtor to dispose of the assets subject to such Liens;
(11) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment) entered into with the approval of the Company’s Board of Directors, which limitation is applicable only to the assets that are the subject of such agreements;
(1215) encumbrances or and restrictions applicable only to a Restricted Subsidiary that is not a Domestic Subsidiary;
(13) encumbrances or restrictions on cash or other deposits or net worth imposed by customers or lessors under contained in contracts or leases entered into in the ordinary course of business;
(14) customary encumbrances , not relating to any Indebtedness, and restrictions contained that do not, individually or in agreements the aggregate, detract from the value of, or from the ability of the types described Parent Guarantor, the Company and the Restricted Subsidiaries to realize the value of, property or assets of the Parent Guarantor, the Company or any Restricted Subsidiary in any manner material to the definition of Permitted Business Investments;
(15) agreements governing Hedging Obligations incurred in Parent Guarantor, the ordinary course of businessCompany or any Restricted Subsidiary; and
(16) any encumbrance agreement, amendment, modification, restatement, extension, renewal, supplement, refunding, replacement or restriction with respect to an Unrestricted Subsidiary pursuant to Refinancing that amends, modifies, restates, extends, renews, refunds, replaces or by reason of an agreement that Refinances the Unrestricted Subsidiary is a party to agreements containing the encumbrances or entered into before restrictions in the date on which such Unrestricted Subsidiary became a Restricted Subsidiaryforegoing clauses (1) through (15), or in this clause (16); provided that such agreement was not entered into in anticipation the terms and conditions of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance encumbrances or restriction does not extend to restrictions are no more restrictive in any assets or property of material respect taken as a whole, as determined by the Company in good faith, than those under or any other Restricted Subsidiary other than pursuant to the assets and property of such Unrestricted Subsidiary. In each case set forth aboveagreement so amended, notwithstanding any stated limitation on the assets modified, restated, extended, renewed, refunded, replaced or property that may be subject to such encumbrance or restriction, an encumbrance or restriction on a specified asset or property or group or type of assets or property may also apply to all improvements, additions, repairs, attachments or accessions thereto, assets and property affixed or appurtenant thereto, parts, replacements and substitutions therefor, and all products and proceeds thereof, including dividends, distributions, interest and increases in respect thereofRefinanced.
Appears in 2 contracts
Sources: Indenture (Laredo Petroleum Holdings, Inc.), Indenture (Laredo Petroleum, Inc.)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company will Corporation shall not, and will shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock to the Company Corporation or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness indebtedness owed to the Company or any of its Restricted Subsidiaries; provided that the priority that any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends, distributions or liquidating distributions before dividends, distributions or liquidating distributions are paid in respect of common stock of such Restricted Subsidiary shall not constitute a restriction on the ability to make dividends or distributions on Capital Stock for purposes of this Section 4.08Corporation;
(2) make loans or advances to the Company or any of its Restricted Subsidiaries (it being understood that the subordination of loans or advances made to the Company or any of its Restricted Subsidiaries to other Indebtedness incurred by the Company or any of its Restricted Subsidiaries shall not be deemed a restriction on the ability to make loans or advances)Corporation; or
(3) sell, lease or transfer any of its properties or assets to the Company or any of its Restricted Subsidiaries.
(b) The Corporation. However, the preceding restrictions in Section 4.08(a) hereof will shall not apply to encumbrances or restrictions existing under or by reason of:
(1) instruments, indentures, agreements or other documents governing Existing Indebtedness and Indebtedness, the Senior Secured Notes, Credit Agreement Facilities or Receivables Facilities or other contractual encumbrances or restrictions, in each case, as in effect on the date of this Indenture or incurred after the date of this Indenture as permitted under this Indenture, and any amendments, restatements, modifications, renewals, supplements, extensions, refundings, replacements or refinancings of those agreements; , provided that the encumbrances or restrictions contained in the amendments, restatements, modifications, renewals, supplements, extensions, refundings, replacements or refinancings are not not, in the good faith judgment of an Officer the Board of Directors of the Company Corporation, materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements on the date of this Indenture or those contained in those agreements after the date of this Indenture as permitted under this Indenture;
(2) this the Senior Secured Note Indenture, the Notes and Senior Secured Notes, the Senior Secured Note Guarantees, the Debentures, the Debenture Guarantees and this Indenture;
(3) agreements governing other Indebtedness permitted to be incurred under the provisions of Section 4.09 hereof and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained therein are in the reasonable good faith judgment of an Officer of the Company, either (a) not materially more restrictive, taken as a whole, than those contained in this Indenture, the Notes and the Note Guarantees or the Credit Agreement as in effect on the date of this Indenture or (b) not reasonably likely to have a material adverse effect on the ability of the Company to make required payments on the Notes;
(4) applicable law, rule, regulation regulation, order, approval, license, permit or ordersimilar restriction;
(5a) any instrument governing Indebtedness or Capital Stock of a Person acquired by the Company Corporation or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness or Capital Stock was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property properties or assets of the Person, so acquired, and any amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings thereof; provided, that the encumbrances and restrictions in any such amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings are, in the reasonable good faith judgment of an Officer of the Company, no more restrictive, taken as a whole, than those in effect on the date of the acquisition; provided further, that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be incurred; and (b) any amendment, modification, replacement or refinancing thereof, provided, however, that such encumbrances or restrictions are not, in the good faith judgment of the Board of Directors of the Corporation, materially more restrictive, taken as a whole, with respect to consensual encumbrances or restrictions set forth in clauses (1), (2) or (3) of the first paragraph of this Section 8.12 than on such encumbrances or restrictions prior to such amendment, modification, replacement or refinancing;
(65) customary non-assignment provisions in Hydrocarbon purchase contracts and sale or exchange agreements or similar operational agreements or in licenses, easements or leases, in each case, licenses entered into in the ordinary course of business;
(76) purchase money obligations for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on the property purchased or leased of the nature described in clause (3) of the first paragraph of this Section 4.08(a)8.12;
(8) 7) any restriction with respect to (a) a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of all or substantially all the Capital Stock or assets of such Subsidiary or (b) any asset of a Restricted Subsidiary pursuant to an agreement entered into for the sale or other disposition of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary such asset (including in connection with sale and leaseback transactions), in each case pending its the closing of such sale or other disposition;
(9) 8) Permitted Refinancing Indebtedness; , provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness areare not, in the reasonable good faith judgment of an Officer the Board of Directors of the CompanyCorporation, not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced, extended, renewed, refunded, replaced, defeased or discharged;
(9) Indebtedness or other contractual requirements of a Receivables Entity in connection with a Qualified Receivables Transaction, provided that such restrictions apply only to such Receivables Entity;
(10) Liens permitted provisions in agreements or instruments that prohibit the payment of dividends or the making of other distributions with respect to be incurred under the provisions Capital Stock of Section 4.12 that limit the right of the debtor to dispose of the assets subject to such Liensa Person other than on a pro rata basis;
(11) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-sale and leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment) entered into with the approval of the Company’s Board of DirectorsDirectors of the Corporation, which limitation is applicable only to the assets that are the subject of such agreements;
(12) encumbrances or restrictions applicable only to a Restricted Subsidiary that is not a Domestic Subsidiary;
(13) encumbrances or restrictions on cash or other deposits or net worth imposed by in leases, in agreements with customers or lessors and under other contracts or leases entered into in the ordinary course of business;
(1413) customary restrictions in other Indebtedness incurred in compliance with Section 8.7, provided that such restrictions, taken as a whole, are, in the good faith judgment of the Board of Directors of the Corporation, no more materially restrictive with respect to such encumbrances and restrictions than those contained in the existing agreements of referenced in clauses (1) and (2) above;
(14) encumbrances on property that exist at the types described in time such property was acquired by the definition of Permitted Business InvestmentsCorporation or any Restricted Subsidiary;
(15) agreements any such encumbrance or restriction consisting of customary non-assignment provisions in leases governing Hedging Obligations incurred in leasehold interests to the ordinary course extent such provisions restrict the transfer of businessthe lease or the property leased thereunder; and
(16) any encumbrance or restriction with respect to an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into restrictions contained in anticipation agreements governing Permitted Liens of the Unrestricted Subsidiary becoming a Corporation or any of its Restricted Subsidiary and any Subsidiaries or in respect of licenses otherwise permitted to be incurred under this Indenture, in each case to the extent such encumbrance or restriction does not extend to any assets or property restrictions only restrict the transfer of the Company or any other Restricted Subsidiary other than the assets and property of such Unrestricted Subsidiary. In each case set forth above, notwithstanding any stated limitation on the assets or property that may be subject to such encumbrance agreement or restriction, an encumbrance or restriction on a specified asset or property or group or type of assets or property may also apply to all improvements, additions, repairs, attachments or accessions thereto, assets and property affixed or appurtenant thereto, parts, replacements and substitutions therefor, and all products and proceeds thereof, including dividends, distributions, interest and increases in respect thereoflicense.
Appears in 2 contracts
Sources: Trust Indenture (Wall2wall Media Inc.), Trust Indenture (Wall2wall Media Inc.)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company Issuer will not, and will not permit any of its Restricted Subsidiaries that are not Guarantors to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary that is not a Guarantor to:
(1) pay dividends or make any other distributions on its Capital Stock to the Company Issuer or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Company Issuer or any of its Restricted Subsidiaries; provided that the priority that any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends, distributions or liquidating distributions before dividends, distributions or liquidating distributions are paid in respect of common stock of such Restricted Subsidiary shall not constitute a restriction on the ability to make dividends or distributions on Capital Stock for purposes of this Section 4.08;
(2) make loans or advances to the Company Issuer or any of its Restricted Subsidiaries (it being understood that the subordination of loans or advances made to the Company or any of its Restricted Subsidiaries to other Indebtedness incurred by the Company or any of its Restricted Subsidiaries shall not be deemed a restriction on the ability to make loans or advances)Subsidiaries; or
(3) sell, lease or transfer any of its properties or assets to the Company Issuer or any of its Restricted Subsidiaries.
(b) The restrictions in Section 4.08(a) hereof will not apply to encumbrances or restrictions existing under or by reason of:
(1) agreements governing Existing Indebtedness and contractual encumbrances or restrictions of the Credit Agreement as Issuer or any of its Restricted Subsidiaries (i) in effect on the date of this Indenture and any amendments, restatements, modifications, renewals, supplements, refundings, replacements Acquisition Closing Date or refinancings of those agreements; provided that (ii) pursuant to the encumbrances or restrictions contained in the amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are not in the good faith judgment of an Officer of the Company materially more restrictive, taken as a whole, with respect to such dividend New Credit Agreements and other payment restrictions than those contained in those agreements on documents relating to the date of this IndentureNew Credit Agreements, related swap contracts and Indebtedness permitted pursuant to Section 4.09(b)(2);
(2) this Indenture, the Notes and the Note GuaranteesGuarantees (and any Additional Notes and related guarantees), and the Security Documents and Intercreditor Agreements;
(3) agreements governing other Indebtedness Indebtedness, Disqualified Stock or preferred stock permitted to be incurred under the provisions of Section 4.09 hereof and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained therein are in the reasonable good faith judgment of an Officer of the Company, either (ai) are not materially more restrictive, taken as a whole, restrictive than those contained in this Indenture, the Notes and the Note Guarantees or the Credit Agreement as agreements governing Indebtedness in effect on the date of this Indenture Acquisition Closing Date, or (bii) are not reasonably likely materially more disadvantageous to have a material adverse effect on the ability Holders of the Company Notes than is customary in comparable financings (as determined by the Issuer in good faith, which determination shall be conclusive) and in the case of subclause (ii) either (x) the Issuer determines (in good faith) that such encumbrance or restriction will not affect the Issuer’s ability to make required principal or interest payments on the NotesNotes or (y) such encumbrances or restrictions apply only during the continuance of a default in respect of payment or a financial maintenance covenant relating to such Indebtedness;
(4) applicable law, rule, regulation regulation, order, approval, license, permit or ordersimilar restriction;
(5) any instrument governing Indebtedness or Capital Stock of a Person acquired by by, or merged, amalgamated or consolidated with or into, the Company Issuer or any of its Restricted Subsidiaries as in effect at the time of such acquisition or at the time it merges with or into the Issuer or any Restricted Subsidiary (except to the extent such Indebtedness or Capital Stock instrument was incurred entered into in connection with or in contemplation of such acquisitionthereof), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, and any amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements acquired or refinancings thereof; provided, that the encumbrances and restrictions in any such amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings are, in the reasonable good faith judgment of an Officer of the Company, no more restrictive, taken as a whole, than those in effect on the date of the acquisitiondesignated; provided further, that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be incurred;
(6) customary non-assignment or sub-letting provisions in Hydrocarbon purchase and sale or exchange agreements or similar operational agreements or in licensescontracts, easements or leases, in each case, sub-leases and licenses entered into in the ordinary course of business;
(7) purchase money obligations for property acquired in the ordinary course of business obligations, mortgage financings and Capital Lease Obligations that impose restrictions on the property purchased or leased of the nature described in clause (3) of Section 4.08(a)) hereof;
(8) contracts for the sale or other disposition of Capital Stock or assets, including any agreement for the sale or other disposition of a Restricted Subsidiary of all or substantially all of the assets of such Restricted Subsidiary in compliance with the terms of this Indenture that restricts distributions by that Restricted Subsidiary pending its such sale or other disposition;
(9) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, in the reasonable good faith judgment of an Officer of the Company, are not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(10) Secured Indebtedness otherwise permitted to be incurred pursuant to Section 4.09 hereof and Liens permitted to be incurred under pursuant to the provisions of Section 4.12 that limit the right of the debtor to dispose of the assets subject to such Lienshereof;
(11) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements agreements, limited liability company organizational documents and other similar agreements (including agreements entered into in connection with a Restricted Investment) entered into with the approval of the Company’s Board of DirectorsPermitted Investment or pursuant to Section 4.07 hereof), which limitation is applicable only to the assets that are the subject of such agreements;
(12) encumbrances or restrictions applicable only to a Restricted Subsidiary that is not a Domestic Subsidiary;
(13) encumbrances or restrictions on cash cash, Cash Equivalents or other deposits or net worth imposed by customers or lessors under contracts or leases entered into in the ordinary course of business;
(13) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(14) customary encumbrances any Restricted Investment not prohibited by Section 4.07 hereof and restrictions contained in agreements of the types described in the definition of any Permitted Business InvestmentsInvestment;
(15) agreements governing Hedging Obligations incurred any encumbrance or restriction of a Securitization Entity effected in the ordinary course of businessconnection with a Qualified Securitization Transaction; andprovided, however, that such restrictions apply only to such Securitization Entity;
(16) other Indebtedness, Disqualified Stock or preferred stock of Non-Guarantor Subsidiaries that is incurred or issued subsequent to the Acquisition Closing Date pursuant to Section 4.09 hereof;
(17) any encumbrance or restriction with respect to an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became a Restricted SubsidiarySubsidiary of the Issuer; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary of the Issuer and any such encumbrance or restriction does not extend to any assets or property of the Company or Issuer of any other Restricted Subsidiary other than the assets and property of such Unrestricted Subsidiary. In each case set forth above, notwithstanding any stated limitation ;
(18) provisions with respect to the receipt of a rebate on the assets an operating lease until all obligations due to a lessor on other operating leases are satisfied or property that may be subject to such encumbrance or restriction, an encumbrance or restriction on a specified asset or property or group or type other customary restrictions in respect of assets or contract rights acquired by a Restricted Subsidiary of the Issuer in connection with a Sale/Leaseback Transaction;
(19) encumbrances and restrictions contained in contracts entered into in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property may also apply or assets of the Issuer or any Restricted Subsidiary of the Issuer or the ability of the Issuer or such Restricted Subsidiary to all improvementsrealize such value, additionsor to make any distributions relating to such property or assets in each case in any material respect; and
(20) any encumbrances or restrictions of the type referred to in Sections 4.08(a)(1), repairs(2) and (3) hereof imposed by any amendments, attachments or accessions theretomodifications, assets and property affixed or appurtenant theretorestatements, partsrenewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (1) through (19) above; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Issuer, not materially more restrictive as a whole with respect to such dividend and substitutions thereforother payment restrictions than those contained in the dividend or other payment restrictions prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing. For purposes of determining compliance with this covenant, (i) the priority of any preferred stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common shares shall not be deemed a restriction on the ability to make distributions on Capital Stock and all products and proceeds thereof, including dividends, distributions, interest and increases in respect thereof(ii) the subordination of loans or advances made to the Issuer or a Restricted Subsidiary of the Issuer to other Indebtedness incurred by the Issuer or any such Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances.
Appears in 2 contracts
Sources: Indenture (Ingram Micro Holding Corp), Indenture (Ingram Micro Holding Corp)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock to the Company or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Company or any of its Restricted Subsidiaries; provided that the priority that any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends, distributions or liquidating distributions before dividends, distributions or liquidating distributions are paid in respect of common stock of such Restricted Subsidiary shall not constitute a restriction on the ability to make dividends or distributions on Capital Stock for purposes of this Section 4.08;
(2) make loans or advances to the Company or any of its Restricted Subsidiaries (it being understood that the subordination of loans or advances made to the Company or any of its Restricted Subsidiaries to other Indebtedness incurred by the Company or any of its Restricted Subsidiaries shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its properties or assets to the Company or any of its Restricted Subsidiaries.
(b) The restrictions in Section 4.08(a) hereof will not apply to encumbrances or restrictions existing under or by reason of:
(1) agreements governing Existing Indebtedness as in effect on the Issue Date and the Credit Agreement as in effect on the date of this Indenture Issue Date, and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained in the amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are not in the good faith judgment of an Officer of the Company materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements on the date of this IndentureIssue Date;
(2) this Indenture, the Notes and the Note Guarantees, or the Concurrent Notes Indenture, the Concurrent Notes and the related guarantees;
(3) agreements governing other Indebtedness permitted to be incurred under the provisions of Section 4.09 hereof and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained therein are are, in the reasonable good faith judgment of an Officer of the Company, either (a) not materially more restrictive, taken as a whole, than those contained in this Indenture, the Notes and the Note Guarantees with respect to the Notes or the Credit Agreement as in effect on the date of this Indenture Issue Date or (b) not reasonably likely to have a material adverse effect on the ability of the Company to make required payments on the Notes;
(4) applicable law, rule, regulation or order;
(5) any instrument governing Indebtedness or Capital Stock of a Person acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness or Capital Stock was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, and any amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings thereof; provided, provided that the encumbrances and restrictions in any such amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings are, in the reasonable good faith judgment of an Officer of the Company, no more restrictive, taken as a whole, than those in effect on the date of the acquisition; provided further, that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be incurred;
(6) customary non-assignment provisions in Hydrocarbon purchase and sale or exchange agreements or similar operational agreements or in licenses, easements or leases, in each case, entered into in the ordinary course of business;
(7) purchase money obligations for property acquired in the ordinary course of business and Capital Finance Lease Obligations that impose restrictions on the property purchased or leased of the nature described in clause (3) of Section 4.08(a);
(8) any agreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(9) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, in the reasonable good faith judgment of an Officer of the Company, not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(10) Liens permitted to be incurred under the provisions of Section 4.12 that limit the right of the debtor to dispose of the assets subject to such Liens;
(11) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment) entered into with the approval of the Company’s Board of Directors, which limitation is applicable only to the assets that are the subject of such agreements;
(12) encumbrances or restrictions applicable only to a Restricted Subsidiary that is not a Domestic Subsidiary;
(13) encumbrances or restrictions on cash cash, Cash Equivalents or other deposits or net worth imposed by customers or lessors under contracts or leases entered into in the ordinary course of business;
(14) customary encumbrances and restrictions contained in agreements of the types described in the definition of Permitted Business Investments;
(15) agreements governing Hedging Obligations incurred in the ordinary course of business; and;
(16) any encumbrance or restriction with respect to an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Unrestricted Subsidiary;
(17) customary provisions contained in leases, sub-leases, licenses, sub-licenses, Equity Interests or similar agreements, including with respect to intellectual property and other agreements;
(18) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any Restricted Subsidiary is a party entered into in the ordinary course of business or consistent with industry practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of any other Restricted Subsidiary;
(19) customary provisions restricting subletting or assignment of any lease governing a leasehold interest of the Company or any Restricted Subsidiary;
(20) customary provisions restricting assignment of any agreement; and
(21) restrictions arising in connection with cash or other deposits permitted under Section 4.12. In each case set forth above, notwithstanding any stated limitation on the assets or property that may be subject to such encumbrance or restriction, an encumbrance or restriction on a specified asset or property or group or type of assets or property may also apply to all improvements, additions, repairs, attachments or accessions thereto, assets and property affixed or appurtenant thereto, parts, replacements and substitutions therefor, and all products and proceeds thereof, including dividends, distributions, interest and increases in respect thereof.
Appears in 2 contracts
Sources: Indenture (Civitas Resources, Inc.), Indenture (Civitas Resources, Inc.)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or permit otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) (i) pay dividends or make any other distributions on its Capital Stock to the Company or any of Restricted Subsidiary (A) on its Restricted Subsidiaries, Capital Stock or (B) with respect to any other interest or participation in, or measured by, its profits, or (ii) pay any Indebtedness owed to the Company or any of its Restricted Subsidiaries; provided that the priority that any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends, distributions or liquidating distributions before dividends, distributions or liquidating distributions are paid in respect of common stock of such Restricted Subsidiary shall not constitute a restriction on the ability to make dividends or distributions on Capital Stock for purposes of this Section 4.08Subsidiary;
(2) make loans or advances to the Company or any of its Restricted Subsidiaries (it being understood that the subordination of loans or advances made to the Company or any of its Restricted Subsidiaries to other Indebtedness incurred by the Company or any of its Restricted Subsidiaries shall not be deemed a restriction on the ability to make loans or advances)Subsidiary; or
(3) sell, lease or transfer any of its properties or assets to the Company or any of its Restricted Subsidiaries.
(b) The Subsidiary. However, the preceding restrictions in Section 4.08(a) hereof will not apply to encumbrances or restrictions existing under or by reason of:
(1) agreements governing Existing Indebtedness and the Credit Agreement as in effect on as of the date of this Indenture hereof, and any amendments, modifications, restatements, modificationsrenewals, renewalsincreases, supplements, refundings, replacements or refinancings of those agreementsthereof; provided that the encumbrances or restrictions contained in the such amendments, modifications, restatements, modificationsrenewals, renewalsincreases, supplements, refundings, replacements or refinancings are not no more restrictive in the good faith judgment of an Officer of the Company materially more restrictive, taken as a whole, aggregate with respect to such dividend and other payment restrictions than those contained in those the agreements governing Existing Indebtedness as in effect on the date of this Indenturehereof;
(2) this Indenturethe Credit Agreement as in effect as of the date hereof, the Notes and the Note Guarantees;
(3) agreements governing other Indebtedness permitted to be incurred under the provisions of Section 4.09 hereof and any amendments, modifications, restatements, modificationsrenewals, renewalsincreases, supplements, refundings, replacements or refinancings of those agreementsthereof; provided that the encumbrances such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or restrictions contained therein refinancings are no more restrictive in the reasonable good faith judgment of an Officer of the Company, either (a) not materially more restrictive, taken as a whole, aggregate with respect to such dividend and other payment restrictions than those contained in this Indenture, the Notes and the Note Guarantees or the Credit Agreement as in effect on the date of hereof;
(3) this Indenture or (b) not reasonably likely to have a material adverse effect on the ability of the Company to make required payments on and the Notes;
(4) applicable law, including, for the avoidance of doubt, any applicable rule, regulation or order;
(5) any instrument governing Indebtedness or Capital Stock of a Person acquired by the Company or any of its Restricted Subsidiaries Subsidiary as in effect at the time of such acquisition (except to the extent such Indebtedness or Capital Stock was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, and any amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings thereof; provided, that the encumbrances and restrictions in any such amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings are, in the reasonable good faith judgment of an Officer of the Company, no more restrictive, taken as a whole, than those in effect on the date of the acquisition; provided further, that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be incurred;
(6) customary non-assignment provisions in Hydrocarbon purchase and sale contracts, licenses or exchange agreements or similar operational agreements or in licenses, easements or leases, in each case, leases entered into in the ordinary course of businessbusiness and consistent with past practices;
(7) purchase money obligations for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on the property purchased or leased of the nature described in clause (3) of Section 4.08(a);
(8) any agreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(8) restrictions on the transfer of property subject to mortgages, purchase money obligations or Financing Lease Obligations otherwise permitted by clause (5) of Section 4.10;
(9) Permitted permitted Refinancing Indebtedness; , provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, are no more restrictive in the reasonable good faith judgment of an Officer of the Company, not materially more restrictive, taken as a whole, aggregate than those contained in the agreements governing the Indebtedness being refinanced;
(10) Liens permitted to be incurred under the provisions of Section 4.12 4.11 that limit the right of the debtor to dispose of the assets subject to such Liens;
(11) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Permitted Investment) entered into with the approval of the Company’s Board of Directors, which limitation is applicable only to the assets that are the subject of such agreements;
(12) encumbrances or restrictions applicable only to a Restricted Subsidiary that is not a Domestic Subsidiary;
(13) encumbrances or restrictions on cash or other deposits or net worth imposed by customers or lessors under contracts or leases entered into in the ordinary course of business;
(14) customary encumbrances and restrictions contained in agreements of the types described in the definition of Permitted Business Investments;
(1513) agreements governing Hedging Obligations other Indebtedness permitted to be incurred under the provisions of Section 4.10 and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the restrictions therein will not materially affect the Company’s ability to make anticipated principal or interest payments on the Notes (as determined in good faith by senior management or the ordinary course Board of businessDirectors of the Company); and
(1614) any encumbrance or restriction with respect to an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Unrestricted Subsidiary. In each case set forth above, notwithstanding any stated limitation on the assets or property that may be subject to such encumbrance or restriction, an encumbrance Lien or restriction on a specified asset Securitization Subsidiary that, in the good faith judgment of senior management or property or group or type the Board of assets or property may also Directors of the Company, is reasonably required in connection therewith; provided, however, that such restrictions only apply to all improvements, additions, repairs, attachments or accessions thereto, assets and property affixed or appurtenant thereto, parts, replacements and substitutions therefor, and all products and proceeds thereof, including dividends, distributions, interest and increases in respect thereofSecuritization Subsidiaries.
Appears in 2 contracts
Sources: Senior Notes Indenture (Iron Mountain Inc), Senior Notes Indenture (Iron Mountain Inc)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company will not, and will not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock to the Company or any of its Restricted SubsidiariesSubsidiary, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Company or any of its Restricted Subsidiaries; provided that the priority that any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends, distributions or liquidating distributions before dividends, distributions or liquidating distributions are paid in respect of common stock of such Restricted Subsidiary shall not constitute a restriction on the ability to make dividends or distributions on Capital Stock for purposes of this Section 4.08Subsidiary;
(2) make loans or advances to the Company or any of its Restricted Subsidiaries (it being understood that the subordination of loans or advances made to the Company or any of its Restricted Subsidiaries to other Indebtedness incurred by the Company or any of its Restricted Subsidiaries shall not be deemed a restriction on the ability to make loans or advances)Subsidiary; or
(3) sell, lease or transfer any of its properties or assets to the Company or any Restricted Subsidiary, provided that (x) the priority of its any preferred stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill period to) loans or advances made to the Company or any Restricted SubsidiariesSubsidiary to other Indebtedness incurred by the Company or any Restricted Subsidiary, shall not be deemed to constitute such an encumbrance or restriction.
(b) The restrictions in Section 4.08(a) hereof will not apply to encumbrances or restrictions existing under or by reason of:
(1) agreements governing Indebtedness (including Existing Indebtedness Indebtedness), charter documents and the Credit Agreement shareholder agreement as in effect on the date of this Indenture Issue Date and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained in the amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are not in materially less favorable to the good faith judgment of an Officer Holders of the Company materially more restrictiveNotes, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements on the date of this IndentureIssue Date (as determined in good faith by the Company);
(2) this Indenture, the Notes and the Note Guarantees;
(3) agreements governing other Indebtedness permitted to be incurred under the provisions of Section 4.09 hereof and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the restrictions therein are not materially less favorable to the Holders of the Notes than is customary in comparable financings (as determined in good faith by the Company) and the Company determines at the time of the incurrence of such Indebtedness that such encumbrances or restrictions contained therein are will not adversely effect, in the reasonable good faith judgment of an Officer of any material respect, the Company, either (a) not materially more restrictive, taken as a whole, than those contained in this Indenture, the Notes and the Note Guarantees or the Credit Agreement as in effect on the date of this Indenture or (b) not reasonably likely to have a material adverse effect on the ’s ability of the Company to make required principal or interest payments on the Notes;
(4) applicable law, rule, regulation or orderorder or the terms of any license, authorization, concession or permit;
(5) any instrument governing Indebtedness or Capital Stock of a Person acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness or Capital Stock was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, and any amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings thereof; provided, that the encumbrances and restrictions in any such amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings are, in the reasonable good faith judgment of an Officer of the Company, no more restrictive, taken as a whole, than those in effect on the date of the acquisition; provided further, that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be incurred;
(6) customary non-assignment and similar provisions in Hydrocarbon purchase contracts, leases and sale or exchange agreements or similar operational agreements or in licenses, easements or leases, in each case, licenses entered into in the ordinary course of business;
(7) purchase money obligations for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on the property purchased or leased of the nature described in clause (3Section 4.08(a)(3) of Section 4.08(a)hereof;
(8) any agreement for the sale or other disposition of the Capital Stock or all or substantially all of the property and assets of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(9) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, in the reasonable good faith judgment of an Officer of the Company, are not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(10) Liens permitted to be incurred under the provisions of Section 4.12 hereof that limit the right of the debtor to dispose of the assets subject to such Liens;
(11) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment) entered into with the approval of the Company’s Board of Directors, which limitation is applicable only to the assets that are the subject of such agreements;
(12) encumbrances or restrictions applicable only to a Restricted Subsidiary that is not a Domestic Subsidiary;
(13) encumbrances or restrictions on cash or other deposits or net worth imposed by customers or lessors suppliers or required by insurance, surety or bonding companies, in each case, under contracts or leases entered into in the ordinary course of business;
(13) any customary Productive Asset Leases for Vessels and other assets used in the ordinary course of our business; provided that such encumbrance or restriction only extends to the Vessel or other asset financed in such Productive Asset Lease;
(14) customary encumbrances any Restricted Investment not prohibited by Section 4.07 hereof and restrictions contained in agreements of the types described in the definition of any Permitted Business InvestmentsInvestment;
(15) any encumbrance or restriction existing with respect to any Unrestricted Subsidiary or the property or assets of such Unrestricted Subsidiary that is designated as a Restricted Subsidiary in accordance with the terms of this Indenture at the time of such designation and not incurred in contemplation of such designation, which encumbrances or restrictions are not applicable to any Person other than such Unrestricted Subsidiary or the property or assets of such Unrestricted Subsidiary; provided that the encumbrances or restrictions are customary for the business of such Unrestricted Subsidiary and would not, at the time agreed to, be expected (as determined in good faith by the Company) to affect the ability of the Company and the Guarantors to make payments under the Notes, this Indenture and the Note Guarantees;
(16) customary encumbrances or restrictions contained in agreements governing in connection with Hedging Obligations incurred in the ordinary course of businesspermitted under this Indenture; and
(1617) any encumbrance or restriction with respect to an Unrestricted Subsidiary pursuant to or by reason of an existing under any agreement that extends, renews, refinances, replaces, amends, modifies, restates or supplements the Unrestricted Subsidiary is a party to agreements containing the encumbrances or entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiaryrestrictions in Section 4.08(b)(1) through Section 4.08(b)(16) hereof, or in this Section 4.08(b)(17); provided that such agreement was not entered into in anticipation the terms and conditions of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance encumbrances or restriction does not extend restrictions are no more restrictive in any material respect than those under or pursuant to any assets the agreement so extended, renewed, refinanced, replaced, amended, modified, restated or property of the Company or any other Restricted Subsidiary other than the assets and property of such Unrestricted Subsidiary. In each case set forth above, notwithstanding any stated limitation on the assets or property that may be subject to such encumbrance or restriction, an encumbrance or restriction on a specified asset or property or group or type of assets or property may also apply to all improvements, additions, repairs, attachments or accessions thereto, assets and property affixed or appurtenant thereto, parts, replacements and substitutions therefor, and all products and proceeds thereof, including dividends, distributions, interest and increases in respect thereofsupplemented.
Appears in 2 contracts
Sources: Indenture (Viking Holdings LTD), Indenture (Viking Holdings LTD)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company will not, and will not cause or permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or permit otherwise cause to exist come into existence or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions distribution on its Capital Stock to the Company or any Restricted Subsidiary (it being understood that the priority of its Restricted Subsidiaries, any Preferred Stock in receiving dividends or with respect liquidating distributions prior to any other interest dividends or participation in, liquidating distributions being paid on common stock shall not be deemed a restriction on the ability to pay dividends or measured by, its profits, or make distributions on Capital Stock),
(2) pay any Indebtedness owed to the Company or any of its other Restricted Subsidiaries; provided Subsidiary (it being understood that the priority that subordination of Indebtedness owed to the Company or any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends, distributions to other Indebtedness owed by the Company or liquidating distributions before dividends, distributions or liquidating distributions are paid in respect of common stock of such any Restricted Subsidiary shall not constitute be deemed a restriction on the ability to make dividends or distributions on Capital Stock for purposes of this Section 4.08;pay such Indebtedness),
(23) make loans or advances to the Company or any of its other Restricted Subsidiaries Subsidiary (it being understood that the subordination of loans or advances made to by the Company or any of its Restricted Subsidiaries Subsidiary to other Indebtedness incurred by the Company or any of its Restricted Subsidiaries Subsidiary shall not be deemed a restriction on the ability to make loans or advances); , or
(34) sell, lease or transfer any of its properties or assets to the Company or any of its other Restricted SubsidiariesSubsidiary.
(b) The restrictions in However, Section 4.08(a4.13(a) hereof will not apply to encumbrances prohibit any encumbrance or restrictions restriction created, existing or becoming effective under or by reason of:
(1) agreements any agreement (including the Senior Credit Agreement, the indentures governing the Existing Indebtedness Senior Notes and the Credit Agreement as this Indenture) in effect on the date of this Indenture and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained in the amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are not in the good faith judgment of an Officer of the Company materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements on the date of this IndentureIssue Date;
(2) this Indentureany agreement or instrument with respect to a Restricted Subsidiary that is not a Restricted Subsidiary on the Issue Date, in existence at the time such Person becomes a Restricted Subsidiary and not incurred in connection with, or in contemplation of, such Person becoming a Restricted Subsidiary; provided that such encumbrances and restrictions are not applicable to, or to the properties or assets of, the Notes and the Note GuaranteesCompany or any Restricted Subsidiary other than such Subsidiary which is becoming a Restricted Subsidiary;
(3) agreements any agreement or instrument governing any Acquired Debt or other Indebtedness permitted to be incurred under the provisions agreement of Section 4.09 hereof and any amendmentsentity merged into or consolidated with, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained therein are in the reasonable good faith judgment of an Officer of the Company, either (a) not materially more restrictive, taken as a whole, than those contained in this Indenture, the Notes and the Note Guarantees or the Credit Agreement as in effect on the date assets of this Indenture or (b) not reasonably likely to have a material adverse effect on the ability of the Company to make required payments on the Notes;
(4) applicable lawwhich are acquired by, rule, regulation or order;
(5) any instrument governing Indebtedness or Capital Stock of a Person acquired by the Company or any of its Restricted Subsidiaries Subsidiary, so long as in effect at the time of such acquisition encumbrance or restriction (except to the extent such Indebtedness or Capital Stock A) was incurred in connection with or not entered into in contemplation of such the acquisition), which encumbrance merger or restriction consolidation transaction, and (B) is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets or subsidiaries of the Person, so acquired, so long as the agreement containing such restriction does not violate any other provision of this Indenture;
(4) any applicable law or any requirement of any regulatory body;
(5) customary restrictions and conditions contained in the security documents evidencing any amendmentsLiens securing obligations or Indebtedness or agreements relating to Capital Lease Obligations (provided that such Liens are otherwise permitted to be incurred under the provisions of Section 4.10 and such restrictions and conditions are not created for the purpose of avoiding the restrictions imposed by this Section 4.13) that limit the right of the debtor or lessee to dispose of the assets subject to such Liens;
(6) provisions restricting subletting or assignment of any lease governing a leasehold interest (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties) of the Company or any Restricted Subsidiary, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings thereof; provided, that the encumbrances and restrictions in any licenses (including licenses of intellectual property) relating to the property covered thereby, or other encumbrances or restrictions in agreements or instruments relating to specific assets or property that restrict generally the transfers of such amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements assets or refinancings are, in property; provided that such encumbrances or restrictions do not materially impact the reasonable good faith judgment of an Officer ability of the Company, no more restrictive, taken as a whole, than those in effect Company to permit payments on the date of the acquisition; provided further, that, in the case of Indebtedness, such Indebtedness was permitted Notes when due as required by the terms of this Indenture to be incurredIndenture;
(67) customary non-assignment provisions in Hydrocarbon purchase and agreements with respect to asset sales, including the sale or exchange other disposition of all or substantially all the Capital Stock of a Restricted Subsidiary, permitted to be made under the provisions of Section 4.11 that limit the transfer of such assets or assets of such Restricted Subsidiary (or distribution on such Capital Stock) pending the closing of such sale;
(8) shareholders’, partnership, joint venture and similar agreements entered into in the ordinary course of business; provided that such encumbrances or restrictions do not apply to any Restricted Subsidiaries other than the applicable company, partnership, joint venture or other entity;
(9) cash, Cash Equivalents or other deposits, or net worth requirements or similar operational agreements requirements, imposed by suppliers, landlords or in licenses, easements or leases, in each case, customers under contracts entered into in the ordinary course of business;
(710) purchase money obligations for property acquired any Credit Facility or agreement governing Indebtedness of the Company or any Restricted Subsidiary permitted to be incurred under the provisions of Section 4.07; provided that such encumbrances or restrictions are not materially more restrictive, taken as a whole, as determined by the Company in good faith, than those contained in the ordinary course of business and Capital Lease Obligations that impose restrictions Senior Credit Agreement, in the indentures governing the Existing Senior Notes or in this Indenture as in effect on the property purchased or leased Issue Date;
(11) restrictions of the nature described in clause (34) of Section 4.08(a4.13(a) by reason of customary non-assignment provisions in Hydrocarbon purchase or sale or exchange contracts, agreements, licenses and leases entered into in the ordinary course of business;
(12) Commodity Agreements, Currency Agreements or Interest Rate Agreements permitted from time to time under this Indenture;
(13) any Preferred Stock issued by a Restricted Subsidiary; provided that the issuance of such Preferred Stock is permitted pursuant to Section 4.07 and the terms of such Preferred Stock do not expressly restrict the ability of such Restricted Subsidiary to pay dividends or make any other distributions on its Capital Stock (other than requirements to pay dividends or liquidation preferences on such Preferred Stock prior to paying any dividends or making any other distributions on such other Capital Stock);
(8) any agreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(914) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, in the reasonable good faith judgment of an Officer of the Company, not materially are no more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinancedRefinanced;
(10) Liens permitted to be incurred under the provisions of Section 4.12 that limit the right of the debtor to dispose of the assets subject to such Liens;
(11) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment) entered into with the approval of the Company’s Board of Directors, which limitation is applicable only to the assets that are the subject of such agreements;
(1215) encumbrances or and restrictions applicable only to a Restricted Subsidiary that is not a Domestic Subsidiary;
(13) encumbrances or restrictions on cash or other deposits or net worth imposed by customers or lessors under contained in contracts or leases entered into in the ordinary course of business;
(14) customary encumbrances , not relating to any Indebtedness, and restrictions contained that do not, individually or in agreements the aggregate, detract from the value of, or from the ability of the types described Company and the Restricted Subsidiaries to realize the value of, property or assets of the Company or any Restricted Subsidiary in any manner material to the definition of Permitted Business Investments;
(15) agreements governing Hedging Obligations incurred in the ordinary course of businessCompany or any Restricted Subsidiary; and
(16) any encumbrance agreement, amendment, modification, restatement, extension, renewal, supplement, refunding, replacement or restriction with respect to an Unrestricted Subsidiary pursuant to Refinancing that amends, modifies, restates, extends, renews, refunds, replaces or by reason of an agreement that Refinances the Unrestricted Subsidiary is a party to agreements containing the encumbrances or entered into before restrictions in the date on which such Unrestricted Subsidiary became a Restricted Subsidiaryforegoing clauses (1) through (15), or in this clause (16); provided that such agreement was not entered into in anticipation the terms and conditions of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance encumbrances or restriction does not extend to restrictions are no more restrictive in any assets or property of material respect taken as a whole, as determined by the Company in good faith, than those under or any other Restricted Subsidiary other than pursuant to the assets and property of such Unrestricted Subsidiary. In each case set forth aboveagreement so amended, notwithstanding any stated limitation on the assets modified, restated, extended, renewed, refunded, replaced or property that may be subject to such encumbrance or restriction, an encumbrance or restriction on a specified asset or property or group or type of assets or property may also apply to all improvements, additions, repairs, attachments or accessions thereto, assets and property affixed or appurtenant thereto, parts, replacements and substitutions therefor, and all products and proceeds thereof, including dividends, distributions, interest and increases in respect thereofRefinanced.
Appears in 2 contracts
Sources: Indenture (Laredo Petroleum, Inc.), Indenture (Laredo Petroleum, Inc.)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company Except as set forth in Section 4.08(b) hereof, the Authority will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
: (1i) pay dividends or make any other distributions on its Capital Stock to the Company or any of its Restricted SubsidiariesStock, or with respect to any other interest or participation in, or measured by, its profits, to the Authority or any of the Authority’s Restricted Subsidiaries, or pay any Indebtedness indebtedness owed to the Company Authority or any of its the Authority’s Restricted Subsidiaries; provided that the priority that any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends, distributions or liquidating distributions before dividends, distributions or liquidating distributions are paid in respect of common stock of such Restricted Subsidiary shall not constitute a restriction on the ability to make dividends or distributions on Capital Stock for purposes of this Section 4.08;
(2ii) make loans or advances to the Company Authority or any of its the Authority’s Restricted Subsidiaries Subsidiaries; or (it being understood that the subordination of loans or advances made to the Company or any of its Restricted Subsidiaries to other Indebtedness incurred by the Company or any of its Restricted Subsidiaries shall not be deemed a restriction on the ability to make loans or advances); or
(3iii) sell, lease or transfer any of its properties or assets to the Company Authority or any of its the Authority’s Restricted Subsidiaries.
(b) The restrictions in provisions of Section 4.08(a) hereof will not apply to encumbrances or restrictions existing under or by reason of:
(1i) agreements governing contractual encumbrances or restrictions in effect on the Issue Date, including without limitation pursuant to Existing Indebtedness Indebtedness, the Bank Credit Facility and the Second Out Facility (including any security documents relating to the Existing Indebtedness, the Bank Credit Agreement Facility, or the Second Out Facility) as in effect on the date of this Indenture Issue Date and any amendments, modifications, restatements, modificationsrenewals, renewalsextensions, increases, supplements, refundings, replacements Replacements or refinancings of those agreementsthereof; provided that the encumbrances or restrictions contained in the such amendments, modifications, restatements, modificationsrenewals, renewalsextensions, increases, supplements, refundings, replacements Replacements or refinancings are not in the good faith judgment of an Officer of the Company materially no more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements on the date of this Indenture;
(2) this Indenturesuch contractual encumbrance or restriction, the Notes and the Note Guarantees;
(3) agreements governing other Indebtedness permitted to be incurred under the provisions of Section 4.09 hereof and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained therein are in the reasonable good faith judgment of an Officer of the Company, either (a) not materially more restrictive, taken as a whole, than those contained in this Indenture, the Notes and the Note Guarantees or the Credit Agreement as in effect on the date of this Indenture or (b) not reasonably likely to have a material adverse effect on the ability of the Company to make required payments on the NotesIssue Date;
(4ii) the Notes and Indenture;
(iii) applicable law, law or any applicable rule, regulation or order;
(5iv) any agreement or other instrument governing Indebtedness or Capital Stock of a Person acquired by the Company Authority or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness or Capital Stock was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, and any amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings thereof; provided, that the encumbrances and restrictions in any such amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings are, in the reasonable good faith judgment of an Officer of the Company, no more restrictive, taken as a whole, than those in effect on the date of the acquisition; provided further, that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be incurred;
(6v) customary non-assignment provisions in Hydrocarbon purchase and sale or exchange agreements or similar operational agreements or in licenses, easements or leases, in each case, licenses or other contracts entered into in the ordinary course of businessbusiness and consistent with past practices;
(7vi) purchase money obligations (including, without limitation, Capital Lease Obligations) for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on the property purchased or leased so acquired of the nature described in clause (3Section 4.08(a)(iii) of Section 4.08(a)hereof;
(8) vii) contracts or agreements for the sale of assets that impose restrictions on the transfer of such assets and any contract or agreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions by that such Restricted Subsidiary pending its sale or other disposition;
(9viii) Permitted Refinancing Indebtedness; provided that the applicable restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, in the reasonable good faith judgment of an Officer of the Company, not materially are no more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(10ix) Liens any provision of secured Indebtedness otherwise permitted to be incurred under the provisions of Section pursuant to Sections 4.09 and 4.12 hereof that limit limits the right of the debtor Authority or any of its Restricted Subsidiaries to dispose of the assets subject to the Liens securing such LiensIndebtedness;
(11x) provisions limiting with respect to the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment) entered into with the approval ordinary course of the Company’s Board of Directors, which limitation is applicable only to the assets that are the subject of such agreementsbusiness;
(12xi) encumbrances or restrictions applicable only to a Restricted Subsidiary that is not a Domestic Subsidiary;
(13) encumbrances or restrictions on cash or other deposits or net worth imposed by customers or lessors under contracts or leases entered into in the ordinary course of business;
(14xii) customary Indebtedness, Disqualified Stock or preferred stock of the Authority or any Guarantor that is incurred subsequent to the Issue Date pursuant to Section 4.09 hereof containing applicable encumbrances and restrictions contained that are not materially more restrictive than the encumbrances and restrictions in agreements of effect on the types described in Issue Date pursuant to this Indenture, the definition of Permitted Business Investments;
(15) agreements governing Hedging Obligations incurred in Bank Credit Facility, and the ordinary course of businessSecond Out Facility taken together; and
(16xiii) documents or agreements evidencing, relating to, or otherwise governing any encumbrance Permitted Lease Financing to the extent such encumbrances or restriction restrictions are applicable solely to the Income Assets with respect to an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Unrestricted Subsidiary. In each case set forth above, notwithstanding any stated limitation on the assets or property that may be subject to such encumbrance or restriction, an encumbrance or restriction on a specified asset or property or group or type of assets or property may also apply to all improvements, additions, repairs, attachments or accessions thereto, assets and property affixed or appurtenant thereto, parts, replacements and substitutions therefor, and all products and proceeds thereof, including dividends, distributions, interest and increases in respect thereofPermitted Lease Financing.
Appears in 1 contract
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company Issuer will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or permit otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary to:
(1) pay dividends or make any other distributions to the Issuer or any Restricted Subsidiary on its Capital Stock to the Company or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Company Issuer or any of its Restricted Subsidiaries; provided that the priority that any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends, distributions or liquidating distributions before dividends, distributions or liquidating distributions are paid in respect of common stock of such Restricted Subsidiary shall not constitute a restriction on the ability to make dividends or distributions on Capital Stock for purposes of this Section 4.08Subsidiary;
(2) make loans or advances to the Company Issuer or any of its Restricted Subsidiaries (it being understood that the subordination of loans or advances made to the Company or any of its Restricted Subsidiaries to other Indebtedness incurred by the Company or any of its Restricted Subsidiaries shall not be deemed a restriction on the ability to make loans or advances)Subsidiary; or
(3) sell, lease or transfer any of its properties or assets to the Company Issuer or any of its Restricted SubsidiariesSubsidiary.
(b) The restrictions in Section 4.08(a3.4(a) hereof will not apply (in each case) to encumbrances or restrictions existing under or by reason of:
(1i) agreements governing Existing Indebtedness contractual encumbrances or restrictions in effect on the Issue Date, in effect on the Emergence Date (as contemplated by the Plan of Reorganization as described in the Offering Memorandum) and pursuant to the Senior Credit Agreement Facility as in effect on the Escrow Release Date and the related documentation as in effect on such date of this Indenture and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained in the amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are not in the good faith judgment of an Officer of the Company materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements on the date of this Indenturesuch date;
(2ii) this the Indenture, the Notes, the Exchange Notes, the Guarantees of the Notes and the Note GuaranteesExchange Notes and the Security Documents;
(3iii) agreements governing other Indebtedness permitted to be incurred under the provisions of Section 4.09 hereof and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained therein are purchase money obligations for property acquired in the reasonable good faith judgment ordinary course of an Officer business that impose restrictions of the Company, either (anature discussed in Section 3.4(a)(3) not materially more restrictive, taken as a whole, than those contained in this Indenture, the Notes and the Note Guarantees or the Credit Agreement as in effect on the date of this Indenture or (b) not reasonably likely to have a material adverse effect on the ability of the Company to make required payments on the Notesproperty so acquired;
(4iv) applicable law, law or any applicable rule, regulation or order;
(5v) any agreement or other instrument governing Indebtedness or Capital Stock of a Person acquired by the Company Issuer or any of its Restricted Subsidiaries as Subsidiary in effect existence at the time of such acquisition (except to the extent such Indebtedness or Capital Stock was incurred in connection with or but not created in contemplation of such acquisitionthereof), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, and any amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings thereof; provided, that the encumbrances and restrictions in any such amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings are, in the reasonable good faith judgment of an Officer of the Company, no more restrictive, taken as a whole, than those in effect on the date of the acquisition; acquired provided further, that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this the Indenture to be incurred;
(6vi) contracts for the sale of assets, including, without limitation, customary non-assignment provisions in Hydrocarbon purchase and restrictions with respect to a Subsidiary pursuant to an agreement that has been entered into for the sale or exchange agreements disposition of all or similar operational agreements substantially all of the Capital Stock or in licenses, easements or leases, in each case, entered into in the ordinary course assets of business;
(7) purchase money obligations for property acquired in the ordinary course of business and Capital Lease Obligations such Subsidiary that impose restrictions on the property purchased or leased of the nature described in clause (3) of Section 4.08(a)assets to be sold;
(8) any agreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(9vii) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing secured Indebtedness are, in the reasonable good faith judgment of an Officer of the Company, not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(10) Liens otherwise permitted to be incurred under pursuant to the provisions of Section 4.12 covenants described in Sections 3.2 and 3.6 that limit the right of the debtor to dispose of the assets subject to securing such LiensIndebtedness;
(11viii) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment) entered into with the approval of the Company’s Board of Directors, which limitation is applicable only to the assets that are the subject of such agreements;
(12) encumbrances or restrictions applicable only to a Restricted Subsidiary that is not a Domestic Subsidiary;
(13) encumbrances or restrictions on cash or other deposits or net worth imposed by customers or lessors under contracts or leases entered into in the ordinary course of business;
(14ix) customary encumbrances and restrictions contained in agreements other Indebtedness, Disqualified Stock or preferred stock of Foreign Subsidiaries permitted to be incurred subsequent to the Issue Date pursuant to the provisions of the types covenant described in Section 3.2 that impose restrictions solely on the definition of Permitted Business InvestmentsForeign Subsidiaries party thereto or their Subsidiaries;
(15x) customary provisions in joint venture agreements governing Hedging Obligations incurred and other similar agreements relating solely to such joint venture provided that with respect to any joint venture agreement relating to a Restricted Subsidiary, such provisions will not materially affect the Issuer’s ability to make anticipated principal or interest payments on the Notes (as determined in good faith by the Board of Directors of the Issuer);
(xi) customary provisions contained in leases, licenses and other agreements entered into in the ordinary course of business;
(xii) any agreement or instrument (A) relating to any Indebtedness or preferred stock of a Restricted Subsidiary permitted to be incurred subsequent to the Issue Date pursuant to Section 3.2 if the encumbrances and restrictions are not materially more disadvantageous to the Holders than is customary in comparable financings (as determined in good faith by the Issuer) and (B) either (x) the Issuer determines that such encumbrance or restriction will not adversely affect the Issuer’s ability to make principal and interest payments on the Notes as and when they come due or (y) such encumbrances and restrictions apply only during the continuance of a default in respect of a payment or financial maintenance covenant relating to such Indebtedness;
(xiii) restrictions created in connection with any Receivables Facility that, in the good faith determination of the Board of Directors of the Issuer, are necessary or advisable to effect such Receivables Facility; and
(16xiv) any encumbrance encumbrances or restriction with respect restrictions of the type referred to an Unrestricted Subsidiary pursuant in clauses (1), (2) and (3) of Section 3.4(a) above imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to or by reason of an agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiaryin clauses (i) through (xiii) above; provided that such agreement was not entered into amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in anticipation the good faith judgment of the Unrestricted Subsidiary becoming Issuer’s Board of Directors, not materially more restrictive taken as a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Unrestricted Subsidiary. In each case set forth above, notwithstanding any stated limitation on the assets or property that may be subject whole with respect to such encumbrance and other restrictions than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or restriction, an encumbrance or restriction on a specified asset or property or group or type of assets or property may also apply to all improvements, additions, repairs, attachments or accessions thereto, assets and property affixed or appurtenant thereto, parts, replacements and substitutions therefor, and all products and proceeds thereof, including dividends, distributions, interest and increases in respect thereofrefinancing.
Appears in 1 contract
Sources: Indenture (RDA Holding Co.)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock to the Company or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Company or any of its Restricted Subsidiaries; provided that the priority that any series of Preferred Stock preferred stock of a Restricted Subsidiary has in receiving dividends, distributions dividends or liquidating distributions before dividends, distributions dividends or liquidating distributions are paid in respect of common stock of such Restricted Subsidiary shall not constitute a restriction on the ability to make pay dividends or make distributions on Capital Stock for purposes of this Section 4.084.08(a);
(2) make loans or advances to the Company or any of its Restricted Subsidiaries (it being understood that the subordination of loans or advances made to the Company or any of its such Restricted Subsidiaries Subsidiary to other Indebtedness incurred by the Company or any of its such Restricted Subsidiaries Subsidiary shall not be deemed a restriction on the ability to make loans or advancesadvances for purposes of this Section 4.08(a)); or
(3) sell, lease or transfer any of its properties or assets to the Company or any of its Restricted Subsidiaries.
(b) The However, the restrictions in Section 4.08(a) hereof will not apply to encumbrances or restrictions existing under or by reason of:
(1) agreements or instruments governing Existing Indebtedness (as in effect on the Issue Date) and the Credit Agreement ABL Facility (as in effect on the date of this Indenture thereof), and any amendments, modifications, restatements, modificationsrenewals, renewalsextensions, increases, supplements, refundings, replacements or refinancings of those agreements; agreements or the Indebtedness to which they relate, provided that the encumbrances or restrictions contained in the any amendments, modifications, restatements, modificationsrenewals, renewalsextensions, increases, supplements, refundings, replacements or refinancings are not are, in the reasonable good faith judgment of an the Chief Financial Officer of the Company General Partner, not materially more restrictive, taken as a whole, with respect to such dividend dividend, distribution and other payment restrictions than those contained in those agreements on the Issue Date or, in the case of the ABL Facility, on the date of this Indenturethereof;
(2) this Indenture, the Notes (and any Additional Notes), the Note Guarantees, the Collateral Trust Agreement and the Security Documents;
(3) agreements governing other Indebtedness permitted to be incurred under the provisions of Section 4.09 hereof and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained therein are in the reasonable good faith judgment of an Officer of the Company, either (a) not materially more restrictive, taken as a whole, than those contained in this Indenture, the Notes and the Note Guarantees or the Credit Agreement as in effect on the date of this Indenture or (b) not reasonably likely to have a material adverse effect on the ability of the Company to make required payments on the Notes;
(4) applicable law, rule, regulation regulation, order, approval, license, permit or ordersimilar restriction;
(54) any instrument governing Indebtedness or Capital Stock of a Person acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness or Capital Stock was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, acquired and any amendments, modifications, restatements, modifications, renewals, extensions, increases, supplements, increases, refundings, replacements or refinancings thereof; provided, provided that the encumbrances and or restrictions contained in any such amendments, modifications, restatements, modifications, renewals, extensions, increases, supplements, increases, refundings, replacements or refinancings are, in the reasonable good faith judgment of an the Chief Financial Officer of the CompanyGeneral Partner, no not materially more restrictive, taken as a whole, than those in effect on the date of the acquisition; provided provided, further, that, in the case of Indebtedness, the incurrence of such Indebtedness was permitted by the terms of this Indenture to be incurredIndenture;
(65) customary non-assignment provisions in Hydrocarbon purchase and sale contracts or exchange agreements or similar operational agreements or in licenses, easements or leases, in each case, entered into in the ordinary course of business;
(76) mortgage financings, security agreements or purchase money obligations obligations, in each case, for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on the property purchased or leased of the nature described in clause (3) of Section 4.08(a);
(8) 7) any agreement for the sale or other disposition of the Equity Interests in, or all or substantially all of the properties or assets of, a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its the sale or other disposition;
(9) 8) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, in the reasonable good faith judgment of an the Chief Financial Officer of the CompanyGeneral Partner, not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(109) Liens permitted to be incurred under the provisions of Section 4.12 that limit the right of the debtor to dispose of the assets subject to such Liens;
(1110) provisions limiting with respect to the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including including, but not limited to, agreements entered into in connection with a Restricted Investment) entered into in the ordinary course of business or entered into with the approval of the Company’s Board of Directors, which limitation is applicable only to the assets and properties that are the subject of such agreements;
(11) any agreement or instrument relating to any property or assets acquired after the Issue Date, so long as such encumbrance or restriction relates only to the property or assets so acquired and is not and was not created in anticipation of such acquisition;
(12) encumbrances or restrictions applicable only to a Restricted Subsidiary that is not a Domestic Subsidiary;
(13) encumbrances or restrictions on cash cash, Cash Equivalents or other deposits or net worth imposed by customers or lessors under contracts or leases entered into in the ordinary course of business;
(13) the issuance of preferred stock by a Restricted Subsidiary or the payment of dividends thereon in accordance with the terms thereof; provided that issuance of such preferred stock is permitted pursuant to Section 4.09 and the terms of such preferred stock do not expressly restrict the ability of such Restricted Subsidiary to pay dividends or make any other distributions on its Capital Stock (other than requirements to pay dividends or liquidation preferences on such preferred stock prior to paying any dividends or making any other distributions on such other Capital Stock);
(14) customary encumbrances and restrictions contained in agreements of the types described in the definition of Permitted Business Investmentsobligations under Hedging Contracts permitted under this Indenture;
(15) agreements governing Hedging Obligations any agreement or instrument relating to Indebtedness incurred or Capital Stock issued by any Restricted Subsidiary; provided that the encumbrances or restrictions contained in the ordinary course agreements or instruments governing such Indebtedness or Capital Stock (a) apply only in the event of businessa payment default or a default with respect to a financial covenant in such agreement or instrument or (b) will not materially affect the Company’s ability to make payments with respect to the principal of, or the interest and premium, if any, on, the Notes, as determined in the reasonable good faith judgment of the Chief Executive Officer or the Chief Financial Officer of the General Partner; and
(16) any encumbrance other agreement governing Indebtedness permitted to be incurred by Section 4.09 and any amendments, modifications, restatements, renewals, extensions, increases, supplements, refundings, replacements or restriction with respect to an Unrestricted Subsidiary pursuant to or by reason refinancings of an agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiarythose agreements; provided that the encumbrances or restrictions in such agreement was not entered into agreements are, in anticipation the reasonable good faith judgment of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property Chief Financial Officer of the Company or any other Restricted Subsidiary other General Partner, not materially more restrictive, taken as a whole, than the assets and property of such Unrestricted Subsidiary. In each case set forth above, notwithstanding any stated limitation those contained in this Indenture as in effect on the assets Issue Date or property that may be subject to such encumbrance or restriction, an encumbrance or restriction the ABL Facility as in effect on a specified asset or property or group or type of assets or property may also apply to all improvements, additions, repairs, attachments or accessions thereto, assets and property affixed or appurtenant thereto, parts, replacements and substitutions therefor, and all products and proceeds thereof, including dividends, distributions, interest and increases in respect the date thereof.
Appears in 1 contract
Sources: Indenture (CSI Compressco LP)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any of its Restricted Subsidiary Subsidiaries to:
: (1i) pay dividends or make any other distributions on its Capital Stock to the Company or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profitsprofits and payable to the Company and any of its Restricted Subsidiaries, or pay any Indebtedness indebtedness owed to the Company or any of its Restricted Subsidiaries; provided that the priority that any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends, distributions or liquidating distributions before dividends, distributions or liquidating distributions are paid in respect of common stock of such Restricted Subsidiary shall not constitute a restriction on the ability to make dividends or distributions on Capital Stock for purposes of this Section 4.08;
(2ii) make any loans or advances to the Company or any of its Restricted Subsidiaries Subsidiaries; or (it being understood that the subordination of loans or advances made to the Company or any of its Restricted Subsidiaries to other Indebtedness incurred by the Company or any of its Restricted Subsidiaries shall not be deemed a restriction on the ability to make loans or advances); or
(3iii) sell, lease or transfer any of its properties or assets to the Company or any of its Restricted Subsidiaries.
(b) The . However, the preceding restrictions in Section 4.08(a) hereof will not apply to encumbrances or restrictions existing under or by reason of:
: (1) any agreement in effect or entered into on the date of this Indenture, including agreements governing Existing Indebtedness and the New Credit Agreement Facility as in effect on the date of this Indenture and any amendments, modifications, restatements, modificationsrenewals, renewalsincreases, supplements, refundings, replacements or refinancings of those agreements; , provided that the encumbrances or restrictions contained in the amendments, modifications, restatements, modificationsrenewals, renewalsincreases, supplements, refundings, replacements replacement or refinancings are not in the good faith judgment of an Officer of the Company materially more restrictiveless favorable, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements on the date of this Indenture;
; (2) this Indenture, the Notes and the Note Subsidiary Guarantees;
; (3) agreements governing other Indebtedness permitted to be incurred under the provisions of Section 4.09 hereof applicable law and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained therein are in the reasonable good faith judgment of an Officer of the Company, either (a) not materially more restrictive, taken as a whole, than those contained in this Indenture, the Notes and the Note Guarantees or the Credit Agreement as in effect on the date of this Indenture or (b) not reasonably likely to have a material adverse effect on the ability of the Company to make required payments on the Notes;
(4) applicable law, rule, regulation or order;
; (54) any instrument governing Indebtedness or Capital Stock of a Person acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness or Capital Stock was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, and any amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings thereof; provided, that the encumbrances and restrictions in any such amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings are, in the reasonable good faith judgment of an Officer of the Company, no more restrictive, taken as a whole, than those in effect on the date of the acquisition; provided further, that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be incurred;
; (65) customary non-assignment provisions in Hydrocarbon purchase and sale or exchange agreements or similar operational agreements or in licenses, easements or leases, in each case, licenses or contracts entered into in the ordinary course of business;
; (76) purchase money obligations for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on the that property purchased or leased of the nature described in clause (3iii) of Section 4.08(a);
the preceding paragraph; (8) 7) any agreement for the sale or other disposition of assets, including, without limitation, customary restrictions with respect to a Restricted Subsidiary pursuant to an agreement that restricts distributions by that Restricted Subsidiary pending its has been entered into for the sale or other disposition;
disposition of Capital Stock or assets of that Subsidiary; (9) 8) Permitted Refinancing Indebtedness; , provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, in the reasonable good faith judgment of an Officer of the Company, are not materially more restrictiveless favorable, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
; (109) Liens permitted to be incurred under the provisions of Section 4.12 that limit the right of the debtor to dispose of the assets subject to such Liens;
; (1110) customary provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset assets sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection the ordinary course of business; (11) any such encumbrance or restriction with respect to a Restricted Investment) entered into with the approval of the Company’s Board of Directors, which limitation is applicable only Foreign Subsidiary pursuant to the assets that are the subject of an agreement governing Indebtedness incurred by such agreements;
Foreign Subsidiary; (12) encumbrances or restrictions applicable only to a Restricted Subsidiary that is not a Domestic Subsidiary;
(13) encumbrances or restrictions on cash or other deposits or net worth imposed by customers or lessors under contracts or leases entered into in the ordinary course of business;
; (14) customary encumbrances and restrictions contained in agreements of the types described in the definition of Permitted Business Investments;
(15) agreements governing Hedging Obligations incurred in the ordinary course of business; and
(1613) any agreement governing the terms of any Indebtedness incurred pursuant to clause (i) of Section 4.09 hereof, provided, that (i) either (x) the encumbrance or restriction applies only in the event of and during the continuance of a payment default or a default with respect to an Unrestricted Subsidiary pursuant to a financial covenant contained in such Indebtedness or by reason agreement or (y) the Company determines at the time any such Indebtedness is incurred (and at the time of an agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation any modification of the Unrestricted Subsidiary becoming a Restricted Subsidiary and terms of any such encumbrance or restriction), any such encumbrance or restriction does will not extend materially affect the Company's ability to any assets make principal or property of the Company or any other Restricted Subsidiary other than the assets and property of such Unrestricted Subsidiary. In each case set forth above, notwithstanding any stated limitation interest payments on the assets or property that may be subject to such encumbrance or restriction, an Notes and (ii) the encumbrance or restriction on a specified asset is not materially more disadvantageous to the Holders of the Notes than is customary in comparable financings or property agreements (as determined by the Company in good faith); and (14) restrictions created in connection with any Receivables Facility that, in the good faith determination of the Board of Directors of the Company, are necessary or group or type of assets or property may also apply advisable to all improvements, additions, repairs, attachments or accessions thereto, assets and property affixed or appurtenant thereto, parts, replacements and substitutions therefor, and all products and proceeds thereof, including dividends, distributions, interest and increases in respect thereofeffect that Receivables Facility.
Appears in 1 contract
Sources: Indenture (Airgas East Inc)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries that are not Guarantors to, directly or indirectly, create or permit otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary to:
(1) pay (a) dividends or make any other distributions on its Capital Stock to the Company or any of its Restricted Subsidiaries, Subsidiaries on its Capital Stock or with respect to any other interest or participation in, or measured by, its profits, profits (except for any dividend or pay liquidation priority between classes of Capital Stock) or (b) any Indebtedness owed to the Company or any of its Restricted Subsidiaries; provided that the priority that any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends, distributions or liquidating distributions before dividends, distributions or liquidating distributions are paid in respect of common stock of such Restricted Subsidiary shall not constitute a restriction on the ability to make dividends or distributions on Capital Stock for purposes of this Section 4.08;
(2) make loans or advances to the Company or any of its Restricted Subsidiaries (it being understood that the subordination of loans or advances made to the Company or any of its Restricted Subsidiaries to other Indebtedness incurred by the Company or any of its Restricted Subsidiaries shall not be deemed a restriction on the ability to make loans or advances)Subsidiaries; or
(3) sell, lease or transfer any of its properties or assets to the Company or any of its Restricted Subsidiaries.
(b) The restrictions in Section 4.08(a) hereof will shall not apply to encumbrances or restrictions existing under or by reason of:
(1) agreements governing Existing Indebtedness and the Credit Agreement as contractual encumbrances or restrictions in effect on the date of this Indenture Issue Date, including pursuant to (i) the Senior Notes, the Senior Exchange Notes, the guarantees in respect thereof and any amendmentsthe Senior Indentures, restatements(ii) the Priority Guarantee Notes, modificationsthe Priority Guarantee Exchange Notes, renewalsthe guarantees in respect thereof and the Priority Guarantee Indenture, supplements(iii) the Existing CCU Senior Notes and the Existing CCU Senior Notes Indentures and (iv) the Subordinated Notes, refundingsthe Subordinated Exchange Notes, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained guarantees in respect thereof and the amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are not in the good faith judgment of an Officer of the Company materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements on the date of this IndentureSubordinated Indentures;
(2) this Indenture(x) the Senior Credit Facilities and the related documentation and (y) the Indentures, the Notes, the Exchange Notes and the Note GuaranteesGuarantees and the guarantees of the Series B Notes;
(3) agreements governing other Indebtedness permitted to be incurred under purchase money obligations for property acquired in the provisions ordinary course of business and Capital Lease Obligations that impose restrictions of the nature discussed in clause (3) of Section 4.09 4.08(a) hereof and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained therein are in the reasonable good faith judgment of an Officer of the Company, either (a) not materially more restrictive, taken as a whole, than those contained in this Indenture, the Notes and the Note Guarantees or the Credit Agreement as in effect on the date of this Indenture or (b) not reasonably likely to have a material adverse effect on the ability of the Company to make required payments on the Notesproperty so acquired;
(4) applicable law, law or any applicable rule, regulation or order;
(5) any agreement or other instrument governing Indebtedness or Capital Stock of a Person acquired by or merged, consolidated or amalgamated with or into the Company or any of its Restricted Subsidiaries as Subsidiary thereof in effect existence at the time of such acquisition acquisition, merger, consolidation or amalgamation (except to the extent but, in any such Indebtedness or Capital Stock was incurred in connection with or case, not created in contemplation of such acquisitionthereof), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the PersonPerson so acquired and its Subsidiaries, or the property or assets of the Person, Person so acquired, acquired and any amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements its Subsidiaries or refinancings thereof; provided, that the encumbrances and restrictions in any such amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements property or refinancings are, in the reasonable good faith judgment of an Officer of the Company, no more restrictive, taken as a whole, than those in effect on the date of the acquisition; provided further, that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be incurredassets so assumed;
(6) contracts for the sale of assets, including customary non-assignment restrictions with respect to a Subsidiary of (i) the Company or (ii) a Restricted Subsidiary, pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of such Subsidiary that impose restrictions on the assets to be sold;
(7) Secured Indebtedness otherwise permitted to be incurred pursuant to Sections 4.09 and 4.12 hereof that limits the right of the debtor to dispose of the assets securing such Indebtedness;
(8) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(9) other Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries of the Company permitted to be incurred subsequent to the Issue Date pursuant to Section 4.09 hereof;
(10) customary provisions in Hydrocarbon purchase and sale any joint venture agreement or exchange agreements other similar agreement relating solely to such joint venture;
(11) customary provisions contained in any lease, sublease, license, sublicense or similar operational agreements or in licensesagreement, easements or leasesincluding with respect to intellectual property, and other agreements, in each case, entered into in the ordinary course of business;
(712) purchase money obligations for property acquired customary provisions contained in any Indebtedness incurred pursuant to any Credit Facilities as permitted pursuant to Sections 4.09 and 4.12 hereof and provided that an Officer reasonably and in good faith determines at the ordinary course time such Indebtedness is incurred (and at the time of business and Capital Lease Obligations that impose restrictions on the property purchased or leased any modification of the nature described terms of any such encumbrance or restriction) that any such encumbrance or restriction will not materially adversely affect the Issuer’s or any Guarantor’s ability to make any payments, when due, with respect to the Series A Notes or its Guarantee thereof and any other Indebtedness that is an obligation of the Issuer or such Guarantor and such determination is set forth in clause an Officer’s Certificate delivered to the Trustee; and
(13) any encumbrances or restrictions of the type referred to in clauses (1), (2) and (3) of Section 4.08(a) hereof imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (1) through (12) of this Section 4.08(b);
(8) any agreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(9) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the reasonable good faith judgment of an Officer of the Company, not materially more restrictive, restrictive with respect to such encumbrance and other restrictions taken as a whole, whole than those contained in the agreements governing the Indebtedness being refinanced;
(10) Liens permitted to be incurred under the provisions of Section 4.12 that limit the right of the debtor to dispose of the assets subject prior to such Liens;
(11) provisions limiting the disposition amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment) entered into with the approval of the Company’s Board of Directors, which limitation is applicable only to the assets that are the subject of such agreements;
(12) encumbrances or restrictions applicable only to a Restricted Subsidiary that is not a Domestic Subsidiary;
(13) encumbrances or restrictions on cash or other deposits or net worth imposed by customers or lessors under contracts or leases entered into in the ordinary course of business;
(14) customary encumbrances and restrictions contained in agreements of the types described in the definition of Permitted Business Investments;
(15) agreements governing Hedging Obligations incurred in the ordinary course of business; and
(16) any encumbrance or restriction with respect to an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Unrestricted Subsidiary. In each case set forth above, notwithstanding any stated limitation on the assets or property that may be subject to such encumbrance or restriction, an encumbrance or restriction on a specified asset or property or group or type of assets or property may also apply to all improvements, additions, repairs, attachments or accessions thereto, assets and property affixed or appurtenant thereto, parts, replacements and substitutions therefor, and all products and proceeds thereof, including dividends, distributions, interest and increases in respect thereofrefinancing.
Appears in 1 contract
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1i) pay dividends or make any other distributions on its Capital Stock to the Company or any of its Restricted Subsidiaries, (or with respect to any other interest or participation in, or measured by, its profits) to the Company or any of its Restricted Subsidiaries, or pay any Indebtedness liabilities owed to the Company or any of its Restricted Subsidiaries; provided Subsidiaries (it being understood that the priority that of any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends, distributions dividends or liquidating distributions before dividends, distributions prior to dividends or liquidating distributions are being paid in respect of common stock of such Restricted Subsidiary on Common Stock shall not constitute be deemed a restriction on the ability to make dividends or distributions on Capital Stock for purposes of this Section 4.08Stock);
(2ii) make loans or advances to the Company or any of its Restricted Subsidiaries (it being understood that the subordination of loans or advances made to the Company or any of its Restricted Subsidiaries Subsidiary to other Indebtedness incurred Incurred by the Company or any of its Restricted Subsidiaries Subsidiary shall not be deemed a restriction on the ability to make loans or advances); orand
(3iii) sell, lease or transfer any of its properties or assets to the Company or any of its Restricted Subsidiaries.
(b) The However, the preceding restrictions in Section 4.08(a) hereof will shall not apply to encumbrances or restrictions existing under or by reason ofrestrictions:
(1i) agreements governing Existing Indebtedness and existing under, by reason of or with respect to the Credit Agreement, Existing Indebtedness, the Collateral Documents, the Intercreditor Agreement as or any other agreements in effect on the date of this Indenture Issue Date and any amendments, modifications, restatements, modificationsrenewals, renewalsextensions, supplements, refundings, replacements or refinancings of those agreements; thereof, provided that the encumbrances or and restrictions contained in the any such amendments, modifications, restatements, modificationsrenewals, renewalsextensions, supplements, refundings, replacements replacement or refinancings are not are, in the good faith judgment of an Officer of the Company materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements on the date of this Indenture;
(2) this Indenture, the Notes and the Note Guarantees;
(3) agreements governing other Indebtedness permitted to be incurred under the provisions of Section 4.09 hereof and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained therein are in the reasonable good faith judgment of an Officer of the Company’s Board of Directors or Senior Management, either (a) not materially more restrictive, taken as a whole, than those contained in the Credit Agreement, Existing Indebtedness, the Collateral Documents, the Intercreditor Agreement or such other agreements, as the case may be, as in effect on the Issue Date;
(ii) set forth in this Indenture, the Notes and the Note Guarantees or the Credit Agreement as in effect on the date any Guarantee of this Indenture or (b) not reasonably likely to have a material adverse effect on the ability of the Company to make required payments on the Notes;
(4iii) existing under, by reason of or with respect to applicable law, rule, regulation or order;
(5iv) with respect to any instrument governing Indebtedness Person or Capital Stock the property or assets of a Person acquired by the Company or any of its Restricted Subsidiaries as in effect existing at the time of such acquisition (except to the extent such Indebtedness or Capital Stock was incurred and not Incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, Person or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, acquired and any amendments, modifications, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings thereof; provided, provided that the encumbrances and restrictions in any such amendments, modifications, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements replacement or refinancings are, in the reasonable good faith judgment of an Officer of the Company’s Board of Directors or Senior Management, no not materially more restrictive, taken as a whole, than those in effect on the date of the acquisition; provided further, that, ;
(v) in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be incurred;Section 4.08(a)(iii):
(61) that restrict in a customary non-manner the subletting, assignment provisions in Hydrocarbon purchase and sale or exchange agreements transfer of any property or asset that is a lease, license, conveyance or contract or similar operational agreements property or in licenses, easements or leases, in each case, entered into in the ordinary course of business;asset,
(72) existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Company or any Restricted Subsidiary thereof not otherwise prohibited by this Indenture,
(3) purchase money obligations for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on the property purchased so acquired, or
(4) arising or leased agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of the nature described Company or any Restricted Subsidiary thereof in clause (3) of Section 4.08(a)any manner material to the Company or any Restricted Subsidiary thereof, as determined by the Company in good faith;
(8) vi) existing under, by reason of or with respect to any agreement for the sale or other disposition of all or substantially all of the Capital Stock of, or property and assets of, a Restricted Subsidiary that restricts restrict distributions by that Restricted Subsidiary pending its such sale or other disposition;
(9vii) on cash or other deposits or net worth imposed by customers or required by insurance, surety or bonding companies, in each case, under contracts entered into in the ordinary course of business;
(viii) existing under, by reason of or with respect to Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, in the reasonable good faith judgment of an Officer of the Company’s Board of Directors or Senior Management, not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(10ix) Liens permitted existing under, by reason of or with respect to be incurred under the provisions of Section 4.12 that limit the right of the debtor with respect to dispose of the assets subject to such Liens;
(11) provisions limiting the disposition or distribution of assets or property property, in each case contained in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale limited liability company agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment) entered into with the approval of and which the Company’s Board of Directors, which limitation is applicable only Directors or Senior Management determines in good faith shall not adversely affect the Company’s ability to make payments of principal or interest payments on the assets that are the subject of such agreements;
(12) encumbrances or restrictions applicable only to a Restricted Subsidiary that is not a Domestic Subsidiary;
(13) encumbrances or restrictions on cash or other deposits or net worth imposed by customers or lessors under contracts or leases entered into in the ordinary course of business;
(14) customary encumbrances and restrictions contained in agreements of the types described in the definition of Permitted Business Investments;
(15) agreements governing Hedging Obligations incurred in the ordinary course of businessNotes; and
(16x) any encumbrance existing under, by reason of or restriction with respect to an Unrestricted Indebtedness of any Restricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became a Restricted SubsidiaryCompany; provided that the Company’s Board of Directors or Senior Management determines in good faith at the time such agreement was encumbrances or restrictions are created that they do not entered into in anticipation adversely affect the Company’s ability to make payments of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance principal or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Unrestricted Subsidiary. In each case set forth above, notwithstanding any stated limitation interest on the assets or property that may be subject to such encumbrance or restriction, an encumbrance or restriction on a specified asset or property or group or type of assets or property may also apply to all improvements, additions, repairs, attachments or accessions thereto, assets and property affixed or appurtenant thereto, parts, replacements and substitutions therefor, and all products and proceeds thereof, including dividends, distributions, interest and increases in respect thereofNotes.
Appears in 1 contract
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock to the Company or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Company or any of its Restricted Subsidiaries; provided that the priority that any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends, distributions or liquidating distributions before dividends, distributions or liquidating distributions are paid in respect of common stock of such Restricted Subsidiary shall not constitute a restriction on the ability to make dividends or distributions on Capital Stock for purposes of this Section 4.08;
(2) make loans or advances to the Company or any of its Restricted Subsidiaries (it being understood that the subordination of loans or advances made to the Company or any of its Restricted Subsidiaries to other Indebtedness incurred by the Company or any of its Restricted Subsidiaries shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its properties or assets to the Company or any of its Restricted Subsidiaries.
(b) The restrictions in Section 4.08(a) hereof will not apply to encumbrances or restrictions existing under or by reason of:
(1) agreements governing Existing Indebtedness as in effect on the date of this Indenture and the Credit Agreement as in effect on the date of this Indenture Issue Date and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained in the amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are not in the good faith judgment of an Officer of the Company materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements on the date of this Indenture;
(2) this Indenture, the Notes and the Note Guarantees;
(3) agreements governing other Indebtedness permitted to be incurred under the provisions of Section 4.09 hereof and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained therein are in the reasonable good faith judgment of an Officer of the Company, either (a) not materially more restrictive, taken as a whole, than those contained in this Indenture, the Notes and the Note Guarantees with respect to the Notes or the Credit Agreement as in effect on the date of this Indenture or (b) not reasonably likely to have a material adverse effect on the ability of the Company to make required payments on the Notes;
(4) applicable law, rule, regulation or order;
(5) any instrument governing Indebtedness or Capital Stock of a Person acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness or Capital Stock was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, and any amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings thereof; provided, that the encumbrances and restrictions in any such amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings are, in the reasonable good faith judgment of an Officer of the Company, no more restrictive, taken as a whole, than those in effect on the date of the acquisition; provided further, that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be incurred;
(6) customary non-assignment provisions in Hydrocarbon purchase and sale or exchange agreements or similar operational agreements or in licenses, easements or leases, in each case, entered into in the ordinary course of business;
(7) purchase money obligations for property acquired in the ordinary course of business and Capital Finance Lease Obligations that impose restrictions on the property purchased or leased of the nature described in clause (3) of Section 4.08(a);
(8) any agreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(9) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, in the reasonable good faith judgment of an Officer of the Company, not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(10) Liens permitted to be incurred under the provisions of Section 4.12 that limit the right of the debtor to dispose of the assets subject to such Liens;
(11) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment) entered into with the approval of the Company’s Board of Directors, which limitation is applicable only to the assets that are the subject of such agreements;
(12) encumbrances or restrictions applicable only to a Restricted Subsidiary that is not a Domestic Subsidiary;
(13) encumbrances or restrictions on cash cash, Cash Equivalents or other deposits or net worth imposed by customers or lessors under contracts or leases entered into in the ordinary course of business;
(14) customary encumbrances and restrictions contained in agreements of the types described in the definition of Permitted Business Investments;
(15) agreements governing Hedging Obligations incurred in the ordinary course of business; and;
(16) any encumbrance or restriction with respect to an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Unrestricted Subsidiary;
(17) customary provisions contained in leases, sub-leases, licenses, sub-licenses, Equity Interests or similar agreements, including with respect to intellectual property and other agreements;
(18) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any Restricted Subsidiary is a party entered into in the ordinary course of business or consistent with industry practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of any other Restricted Subsidiary;
(19) customary provisions restricting subletting or assignment of any lease governing a leasehold interest of the Company or any Restricted Subsidiary;
(20) customary provisions restricting assignment of any agreement; and
(21) restrictions arising in connection with cash or other deposits permitted under Section 4.12. In each case set forth above, notwithstanding any stated limitation on the assets or property that may be subject to such encumbrance or restriction, an encumbrance or restriction on a specified asset or property or group or type of assets or property may also apply to all improvements, additions, repairs, attachments or accessions thereto, assets and property affixed or appurtenant thereto, parts, replacements and substitutions therefor, and all products and proceeds thereof, including dividends, distributions, interest and increases in respect thereof.
Appears in 1 contract
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company Partnership will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock to the Company Partnership or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Company Partnership or any of its Restricted Subsidiaries; provided that the priority that any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends, distributions dividends or liquidating distributions before dividends, distributions dividends or liquidating distributions are paid in respect of common stock of such Restricted Subsidiary shall not constitute a restriction on the ability to make dividends or distributions on Capital Stock for purposes of this Section 4.08;
(2) make loans or advances to the Company Partnership or any of its Restricted Subsidiaries (it being understood that the subordination of loans or advances made to the Company Partnership or any of its Restricted Subsidiaries Subsidiary to other Indebtedness incurred by the Company Partnership or any of its Restricted Subsidiaries Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its properties or assets to the Company Partnership or any of its Restricted Subsidiaries.
(b) The restrictions in Section 4.08(a) hereof will not apply to encumbrances or restrictions existing under or by reason of:
(1) agreements and instruments (including those governing Existing Indebtedness and the Credit Agreement Facilities) as in effect on the date of this Indenture and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained in the amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are not in the good faith judgment of an Officer of the Company materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements on the date of this Indenture;
(2) this Indenture, the Notes and the Note Guarantees;
(3) agreements governing other Indebtedness permitted to be incurred under the provisions of Section 4.09 hereof and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained therein are in the reasonable good faith judgment of an Officer of the Company, either (a) not materially more restrictive, taken as a whole, than those contained in this Indenture, the Notes and the Note Guarantees or the Credit Agreement as in effect on the date of this Indenture or (b) not reasonably likely to have a material adverse effect on the ability of the Company to make required payments on the NotesGuarantees;
(4) any applicable law, rule, regulation regulation, approval, license, permit or order;
(5) any agreement or instrument governing Indebtedness or Capital Stock of a Person acquired by the Company Partnership or any of its Restricted Subsidiaries (including those governing Indebtedness or Capital Stock) as in effect at the time of such acquisition (except to the extent such Indebtedness or Capital Stock was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, and any amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings thereof; provided, that the encumbrances and restrictions in any such amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings are, in the reasonable good faith judgment of an Officer of the Company, no more restrictive, taken as a whole, than those in effect on the date of the acquisition; provided further, that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be incurred;
(6) customary non-assignment provisions in Hydrocarbon purchase contracts, leases and sale or exchange agreements or similar operational agreements or in licenses, easements or leases, in each case, licenses entered into in the ordinary course of business;
(7) purchase money obligations for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on the property purchased or leased of the nature described in clause (3) of Section 4.08(a)) above;
(8) any agreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(9) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, in the reasonable good faith judgment of an Officer of the Company, are not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(10) Liens permitted to be incurred under the provisions of Section 4.12 hereof that limit the right of the debtor to dispose of the assets subject to such Liens;
(11) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-sale and leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment) entered into with the approval of the Company’s Board of Directors), which limitation is applicable only to the assets that are the subject of such agreements;
(12) encumbrances or restrictions applicable only to a Restricted Subsidiary that is not a Domestic Subsidiary;
(13) encumbrances or restrictions on cash or other deposits or net worth imposed by customers customers, lessors, suppliers, or lessors under contracts or leases entered into required by insurance surety bonding companies, in each case in the ordinary course of business;
(13) in the case of any Foreign Subsidiary, any encumbrance or restriction contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was incurred if either (a) the encumbrance or restriction applies only in the event of a Payment Default or a default with respect to a financial covenant in such Indebtedness or agreement or (b) the Partnership determines that any such encumbrance of restriction will not materially affect the Partnership’s ability to make principal or interest payments on the Notes, as determined in good faith by the Board of Directors of the General Partner, whose determination shall be conclusive;
(14) customary for any purpose not otherwise prohibited by this Indenture, encumbrances and or restrictions contained in agreements of the types type described in clause (3) of Section 4.08(a) above arising or agreed to (i) in the definition ordinary course of Permitted Business Investmentsbusiness that restrict in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license, conveyance or similar contract, including with respect to intellectual property, (ii) that restrict in a customary manner, pursuant to provisions in partnership agreements, limited liability company organizational governance documents, joint venture agreements and other similar agreements, the transfer of ownership interests in, or assets of, such partnership, limited liability company, joint venture or similar Person or (iii) by virtue of any Lien on, or agreement to transfer, option or similar right with respect to any property or assets of, the Partnership or any Restricted Subsidiary;
(15) agreements governing Hedging Obligations incurred in the ordinary course of business; and
(16) any encumbrance encumbrances or restriction restrictions with respect to an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company Partnership or any other Restricted Subsidiary other than the assets and property of such Unrestricted Subsidiary. In each case set forth above, notwithstanding any stated limitation on the ;
(16) customary restrictions in respect of assets or contract rights acquired by a Restricted Subsidiary in connection with a permitted sale and leaseback transaction; and
(17) any agreement or instrument relating to any property that may be subject to or assets acquired after the date of this Indenture, so long as such encumbrance or restriction, an encumbrance or restriction on a specified asset or relates only to the property or group or type assets so acquired and is not and was not created in anticipation of assets or property may also apply to all improvements, additions, repairs, attachments or accessions thereto, assets and property affixed or appurtenant thereto, parts, replacements and substitutions therefor, and all products and proceeds thereof, including dividends, distributions, interest and increases in respect thereofsuch acquisition.
Appears in 1 contract
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock to the Company or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Company or any of its Restricted Subsidiaries; provided that the priority that any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends, distributions or liquidating distributions before dividends, distributions or liquidating distributions are paid in respect of common stock of such Restricted Subsidiary shall not constitute a restriction on the ability to make dividends or distributions on Capital Stock for purposes of this Section 4.08;
(2) make loans or advances to the Company or any of its Restricted Subsidiaries (it being understood that the subordination of loans or advances made to the Company or any of its Restricted Subsidiaries to other Indebtedness incurred by the Company or any of its Restricted Subsidiaries shall not be deemed a restriction on the ability to make loans or advances)Subsidiaries; or
(3) sell, lease or transfer any of its properties or assets to the Company or any of its Restricted Subsidiaries.
(b) The restrictions in Section 4.08(a) hereof will not apply to encumbrances or restrictions existing under or by reason of:
(1) agreements governing Existing Indebtedness and the Credit Agreement Facilities as in effect on the date of this Indenture Issue Date (or otherwise required by such agreements in existence on the Issue Date) and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained in the amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are not in the good faith judgment of an Officer of the Company materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements on the date of this IndentureIssue Date;
(2) this Indenture, the Notes and the Note GuaranteesGuarantees and any Exchange Notes and related Note Guarantees issued pursuant to the Registration Rights Agreement;
(3) agreements governing other Indebtedness permitted to be incurred under the provisions of Section 4.09 hereof and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained therein are in the reasonable good faith judgment of an Officer of the Company, either (ai) are not materially more restrictive, taken as a whole, restrictive than those contained in this Indenture, the Notes and the Note Guarantees or the Credit Agreement as agreements governing Indebtedness in effect on the date of this Indenture Issue Date, or (bii) are not reasonably likely materially more disadvantageous to have a material adverse effect on the ability Holders of the Notes than is customary in comparable financings (as determined by the Company in good faith) and in the case of (ii) either (x) the Company determines (in good faith) that such encumbrance or restriction will not affect the Company’s ability to make required principal or interest payments on the NotesNotes or (y) such encumbrances or restrictions apply only during the continuance of a Default in respect of payment or a financial maintenance covenant relating to such Indebtedness;
(4) applicable law, rule, regulation or order;
(5) any instrument governing Indebtedness or Capital Stock of a Person acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness or Capital Stock instrument was incurred entered into in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, and any amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings thereof; provided, that the encumbrances and restrictions in any such amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings are, in the reasonable good faith judgment of an Officer of the Company, no more restrictive, taken as a whole, than those in effect on the date of the acquisition; provided further, that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be incurred;
(6) customary non-assignment provisions in Hydrocarbon purchase and sale or exchange agreements or similar operational agreements or in licensescontracts, easements or leases, in each case, subleases and licenses entered into in the ordinary course of business;
(7) purchase money obligations for property acquired in the ordinary course of business obligations, mortgage financings and Capital Lease Obligations that impose restrictions on the property purchased or leased of the nature described in clause (3) of Section 4.08(a)) hereof;
(8) contracts for the sale of assets, including any agreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions by that or all or substantially all of the assets of such Restricted Subsidiary in compliance with the terms of this Indenture pending its such sale or other disposition;
(9) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, in the reasonable good faith judgment of an Officer of the Company, are not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(10) Secured Indebtedness otherwise permitted to be incurred pursuant to Section 4.09 hereof and Liens permitted to be incurred under pursuant to the provisions of Section 4.12 hereof, in each case, that limit the right of the debtor to dispose of the assets subject to such Liens;
(11) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment) entered into with the approval of the Company’s Board of Directors), which limitation is applicable only to the assets or Persons that are the subject of such agreements;
(12) encumbrances or restrictions applicable only to a Restricted Subsidiary that is not a Domestic Subsidiary;
(13) encumbrances or restrictions on cash or other deposits or net worth imposed by customers or lessors under contracts or leases agreements entered into in the ordinary course of business;
(13) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(14) customary encumbrances any Restricted Investment not prohibited by Section 4.07 hereof and restrictions contained in agreements of the types described in the definition of any Permitted Business InvestmentsInvestment;
(15) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements governing of the Company or any Restricted Subsidiary;
(16) Hedging Obligations incurred entered into in the ordinary course of businessbusiness and not for speculative purposes;
(17) any encumbrances or restrictions of the type referred to in Sections 4.08(a)(1), (2) and (3) hereof imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (1) through (16) above; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, not materially more restrictive as a whole with respect to such dividend and other payment restrictions than those contained in the dividend or other payment restrictions prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing; and
(1618) any encumbrance or restriction with respect agreements relating to an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary HUD Financing and any such encumbrance or restriction does not extend to any assets or property amendments of the Company or any other Restricted Subsidiary other than the assets and property of such Unrestricted Subsidiary. In each case set forth above, notwithstanding any stated limitation on the assets or property that may be subject to such encumbrance or restriction, an encumbrance or restriction on a specified asset or property or group or type of assets or property may also apply to all improvements, additions, repairs, attachments or accessions thereto, assets and property affixed or appurtenant thereto, parts, replacements and substitutions therefor, and all products and proceeds thereof, including dividends, distributions, interest and increases in respect thereofthose agreements.
Appears in 1 contract
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company will not, and will Parent Guarantor shall not permit any of its the Restricted Subsidiaries to, directly (other than RPPL) to create or indirectly, create otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any of the Restricted Subsidiary Subsidiaries (other than RPPL) to:
(1) pay dividends or make any other distributions on its any Capital Stock to the Company or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Company or any of its Restricted Subsidiaries; provided that the priority that any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends, distributions or liquidating distributions before dividends, distributions or liquidating distributions are paid in respect of common stock of such Restricted Subsidiary shall not constitute a restriction on owned by any of the ability to make dividends or distributions on Capital Stock for purposes of this Section 4.08Restricted Subsidiaries;
(2) pay any Indebtedness or other obligation owed to any of the Restricted Subsidiaries;
(3) make loans or advances to the Company or any of its the Restricted Subsidiaries (it being understood that the subordination of loans or advances made to the Company or any of its Restricted Subsidiaries to other Indebtedness incurred by the Company or any of its Restricted Subsidiaries shall not be deemed a restriction on the ability to make loans or advances)Subsidiaries; or
(34) sell, lease or transfer any of its properties property or assets to the Company or any of its the Restricted Subsidiaries.
; provided that it being understood that (bi) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock; (ii) the subordination of loans or advances made to any Restricted Subsidiary to other Indebtedness Incurred by any Restricted Subsidiary; and (iii) provisions requiring transactions to be on fair and reasonable terms or on an arm’s-length basis, shall, in each case, not be deemed to constitute such an encumbrance or restriction. The foregoing restrictions in Section 4.08(a) hereof will not apply to encumbrances or restrictions existing under or by reason ofrestrictions:
(1) existing in agreements governing Existing Indebtedness and the Credit Agreement as in effect on the date of this Indenture Original Issue Date and any amendmentsextensions, restatements, modificationsrefinancings, renewals, supplements, refundings, amendments or replacements or refinancings of those any of the foregoing agreements; provided that the encumbrances and restrictions in any such extension, refinancing, renewal, supplement, amendment or restrictions contained in the amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings replacement are not in the good faith judgment of an Officer of the Company materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements on the date of this Indenture;
(2) this Indenture, the Notes and the Note Guarantees;
(3) agreements governing other Indebtedness permitted to be incurred under the provisions of Section 4.09 hereof and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained therein are in the reasonable good faith judgment of an Officer of the Company, either (a) not materially more restrictive, taken as a whole, than those contained in this Indenture, the Notes and the Note Guarantees encumbrances or the Credit Agreement as restrictions that are then in effect on and that are being extended, refinanced, renewed or replaced, as determined in good faith by the date Board of this Indenture or (b) not reasonably likely to have a material adverse effect on the ability Directors of the Company to make required payments on the NotesRPPL;
(42) in the Notes and/or this Indenture;
(3) existing under or by reason of applicable law, rule, regulation or order;
(54) any instrument governing Indebtedness or Capital Stock of a Person acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness or Capital Stock was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable respect to any Person, or the properties or assets of any Person, other than the Person, Person or the property or assets of such Person that is designated a Restricted Subsidiary or is acquired by any Restricted Subsidiary, existing at the Persontime of such designation or acquisition and not incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so designated or acquired, and any amendments, restatements, modifications, renewals, extensions, supplementsrefinancings, increases, refundings, renewals or replacements or refinancings thereof; provided, provided that the encumbrances and restrictions in any such amendmentsextension, restatementsrefinancing, modifications, renewals, extensions, supplements, increases, refundings, replacements renewal or refinancings are, in the reasonable good faith judgment of an Officer of the Company, no more restrictive, taken as a whole, than those in effect on the date of the acquisition; provided further, that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be incurred;
(6) customary non-assignment provisions in Hydrocarbon purchase and sale or exchange agreements or similar operational agreements or in licenses, easements or leases, in each case, entered into in the ordinary course of business;
(7) purchase money obligations for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on the property purchased or leased of the nature described in clause (3) of Section 4.08(a);
(8) any agreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(9) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, in the reasonable good faith judgment of an Officer of the Company, replacement are not materially more restrictive, taken as a whole, than those contained encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced, as determined in good faith by the agreements governing the Indebtedness being refinancedBoard of Directors of RPPL;
(105) Liens permitted if they arise, or are agreed to be incurred under in the provisions ordinary course of Section 4.12 business, that (x) restrict in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, (y) exist by virtue of any Lien on, or agreement to transfer, option or similar right with respect to any property or assets of any of the Restricted Subsidiaries not otherwise prohibited by this Indenture or that limit the right of the debtor to dispose of the assets subject to a Lien not otherwise prohibited by this Indenture, or (z) do not relate to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of any of the Restricted Subsidiaries in any manner material to any such LiensRestricted Subsidiary;
(116) provisions limiting with respect to a Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or distribution substantially all of assets the Capital Stock of, or property and assets of, such Restricted Subsidiary that is permitted by Section 4.09, Section 4.10 and Section 4.15;
(7) arising from provisions in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investmentthe ordinary course of business if the encumbrances or restrictions (i) entered into with are customary for such types of agreements and (ii) would not, at the approval time agreed to, be expected to materially adversely affect the ability of the Company’s Issuer to make required payments on the Notes, as determined in good faith by the Board of Directors, which limitation is applicable only to the assets that are the subject Directors of such agreementsRPPL;
(12) 8) with respect to any Indebtedness that is permitted by Section 4.09; provided that the encumbrances or restrictions applicable only (i) are customary for such types of agreements and (ii) would not, at the time agreed to, be expected to a Restricted Subsidiary that is not a Domestic Subsidiary;materially adversely affect the ability of the Issuer to make required payments on the Notes, as determined in good faith by the Board of Directors of RPPL; or
(139) encumbrances or restrictions on cash or other deposits or net worth imposed by customers or lessors under contracts or leases entered into in the ordinary course of business;
(14) customary encumbrances and restrictions contained in agreements of the types described in the definition of Permitted Business Investments;
(15) agreements governing Hedging Obligations incurred in the ordinary course of business; and
(16) any encumbrance or restriction with respect to an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Unrestricted Subsidiary. In each case set forth above, notwithstanding any stated limitation on the assets or property that may be subject to such encumbrance or restriction, an encumbrance or restriction on a specified asset or property or group or type of assets or property may also apply to all improvements, additions, repairs, attachments or accessions thereto, assets and property affixed or appurtenant thereto, parts, replacements and substitutions therefor, and all products and proceeds thereof, including dividends, distributions, interest and increases in respect thereof.
Appears in 1 contract
Sources: Indenture (ReNew Energy Global PLC)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company will not, and will not cause or permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or permit otherwise cause to exist come into existence or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions distribution on its Capital Stock to the Company or any Restricted Subsidiary (it being understood that the priority of its Restricted Subsidiaries, any Preferred Stock in receiving dividends or with respect liquidating distributions prior to any other interest dividends or participation in, liquidating distributions being paid on common stock shall not be deemed a restriction on the ability to pay dividends or measured by, its profits, or make distributions on Capital Stock),
(2) pay any Indebtedness owed to the Company or any of its other Restricted Subsidiaries; provided Subsidiary (it being understood that the priority that subordination of Indebtedness owed to the Company or any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends, distributions to other Indebtedness owed by the Company or liquidating distributions before dividends, distributions or liquidating distributions are paid in respect of common stock of such any Restricted Subsidiary shall not constitute be deemed a restriction on the ability to make dividends or distributions on Capital Stock for purposes of this Section 4.08;pay such Indebtedness),
(23) make loans or advances to the Company or any of its other Restricted Subsidiaries Subsidiary (it being understood that the subordination of loans or advances made to by the Company or any of its Restricted Subsidiaries Subsidiary to other Indebtedness incurred by the Company or any of its Restricted Subsidiaries Subsidiary shall not be deemed a restriction on the ability to make loans or advances); , or
(34) sell, lease or transfer any of its properties or assets to the Company or any of its other Restricted SubsidiariesSubsidiary.
(b) The restrictions in However, Section 4.08(a4.13(a) hereof will not apply to encumbrances prohibit any encumbrance or restrictions restriction created, existing or becoming effective under or by reason of:
(1) agreements governing Existing Indebtedness and any agreement (including the Senior Credit Agreement as Agreement) in effect on the date of this Indenture and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained in the amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are not in the good faith judgment of an Officer of the Company materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements on the date of this IndentureIssue Date;
(2) this Indentureany agreement or instrument with respect to a Restricted Subsidiary that is not a Restricted Subsidiary on the Issue Date, in existence at the time such Person becomes a Restricted Subsidiary and not incurred in connection with, or in contemplation of, such Person becoming a Restricted Subsidiary; provided that such encumbrances and restrictions are not applicable to, or to the properties or assets of, the Notes and the Note GuaranteesCompany or any Restricted Subsidiary other than such Subsidiary which is becoming a Restricted Subsidiary;
(3) agreements any agreement or instrument governing any Acquired Debt or other Indebtedness permitted to be incurred under the provisions agreement of Section 4.09 hereof and any amendmentsentity merged into or consolidated with, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained therein are in the reasonable good faith judgment of an Officer of the Company, either (a) not materially more restrictive, taken as a whole, than those contained in this Indenture, the Notes and the Note Guarantees or the Credit Agreement as in effect on the date assets of this Indenture or (b) not reasonably likely to have a material adverse effect on the ability of the Company to make required payments on the Notes;
(4) applicable lawwhich are acquired by, rule, regulation or order;
(5) any instrument governing Indebtedness or Capital Stock of a Person acquired by the Company or any of its Restricted Subsidiaries Subsidiary, so long as in effect at the time of such acquisition encumbrance or restriction (except to the extent such Indebtedness or Capital Stock A) was incurred in connection with or not entered into in contemplation of such the acquisition), which encumbrance merger or restriction consolidation transaction, and (B) is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets or subsidiaries of the Person, so acquired, so long as the agreement containing such restriction does not violate any other provision of this Indenture;
(4) any applicable law or any requirement of any regulatory body;
(5) customary restrictions and conditions contained in the security documents evidencing any amendmentsLiens securing obligations or Indebtedness or agreements relating to Capital Lease Obligations (provided that such Liens are otherwise permitted to be incurred under the provisions of Section 4.10 and such restrictions and conditions are not created for the purpose of avoiding the restrictions imposed by this Section 4.13) that limit the right of the debtor or lessee to dispose of the assets subject to such Liens;
(6) provisions restricting subletting or assignment of any lease governing a leasehold interest (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties) of the Company or any Restricted Subsidiary, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings thereof; provided, that the encumbrances and restrictions in any licenses (including licenses of intellectual property) relating to the property covered thereby, or other encumbrances or restrictions in agreements or instruments relating to specific assets or property that restrict generally the transfers of such amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements assets or refinancings are, in property; provided that such encumbrances or restrictions do not materially impact the reasonable good faith judgment of an Officer ability of the Company, no more restrictive, taken as a whole, than those in effect Company to permit payments on the date of the acquisition; provided further, that, in the case of Indebtedness, such Indebtedness was permitted Notes when due as required by the terms of this Indenture to be incurredIndenture;
(67) customary non-assignment provisions in Hydrocarbon purchase and agreements with respect to asset sales, including the sale or exchange other disposition of all or substantially all the Capital Stock of a Restricted Subsidiary, permitted to be made under the provisions of Section 4.11 that limit the transfer of such assets or assets of such Restricted Subsidiary (or distribution on such Capital Stock) pending the closing of such sale;
(8) shareholders’, partnership, joint venture and similar agreements entered into in the ordinary course of business; provided that such encumbrances or restrictions do not apply to any Restricted Subsidiaries other than the applicable company, partnership, joint venture or other entity;
(9) cash, Cash Equivalents or other deposits, or net worth requirements or similar operational agreements requirements, imposed by suppliers, landlords or in licenses, easements or leases, in each case, customers under contracts entered into in the ordinary course of business;
(710) purchase money obligations for property acquired any Credit Facility or agreement governing Indebtedness of the Company or any Restricted Subsidiary permitted to be incurred under the provisions of Section 4.07; provided that such encumbrances or restrictions are not materially more restrictive, taken as a whole, as determined by the Company in good faith, than those contained in the ordinary course of business and Capital Lease Obligations that impose restrictions Senior Credit Agreement or in this Indenture as in effect on the property purchased or leased Issue Date;
(11) restrictions of the nature described in clause (34) of Section 4.08(a4.13(a) by reason of customary non-assignment provisions in Hydrocarbon purchase or sale or exchange contracts, agreements, licenses and leases entered into in the ordinary course of business;
(12) Commodity Agreements, Currency Agreements or Interest Rate Agreements permitted from time to time under this Indenture;
(13) any Preferred Stock issued by a Restricted Subsidiary; provided that the issuance of such Preferred Stock is permitted pursuant to Section 4.07 and the terms of such Preferred Stock do not expressly restrict the ability of such Restricted Subsidiary to pay dividends or make any other distributions on its Capital Stock (other than requirements to pay dividends or liquidation preferences on such Preferred Stock prior to paying any dividends or making any other distributions on such other Capital Stock);
(8) any agreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(914) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, in the reasonable good faith judgment of an Officer of the Company, not materially are no more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinancedRefinanced;
(10) Liens permitted to be incurred under the provisions of Section 4.12 that limit the right of the debtor to dispose of the assets subject to such Liens;
(11) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment) entered into with the approval of the Company’s Board of Directors, which limitation is applicable only to the assets that are the subject of such agreements;
(1215) encumbrances or and restrictions applicable only to a Restricted Subsidiary that is not a Domestic Subsidiary;
(13) encumbrances or restrictions on cash or other deposits or net worth imposed by customers or lessors under contained in contracts or leases entered into in the ordinary course of business;
(14) customary encumbrances , not relating to any Indebtedness, and restrictions contained that do not, individually or in agreements the aggregate, detract from the value of, or from the ability of the types described Company and the Restricted Subsidiaries to realize the value of, property or assets of the Company or any Restricted Subsidiary in any manner material to the definition of Permitted Business Investments;
(15) agreements governing Hedging Obligations incurred in the ordinary course of businessCompany or any Restricted Subsidiary; and
(16) any encumbrance agreement, amendment, modification, restatement, extension, renewal, supplement, refunding, replacement or restriction with respect to an Unrestricted Subsidiary pursuant to Refinancing that amends, modifies, restates, extends, renews, refunds, replaces or by reason of an agreement that Refinances the Unrestricted Subsidiary is a party to agreements containing the encumbrances or entered into before restrictions in the date on which such Unrestricted Subsidiary became a Restricted Subsidiaryforegoing clauses (1) through (15), or in this clause (16); provided that such agreement was not entered into in anticipation the terms and conditions of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance encumbrances or restriction does not extend to restrictions are no more restrictive in any assets or property of material respect taken as a whole, as determined by the Company in good faith, than those under or any other Restricted Subsidiary other than pursuant to the assets and property of such Unrestricted Subsidiary. In each case set forth aboveagreement so amended, notwithstanding any stated limitation on the assets modified, restated, extended, renewed, refunded, replaced or property that may be subject to such encumbrance or restriction, an encumbrance or restriction on a specified asset or property or group or type of assets or property may also apply to all improvements, additions, repairs, attachments or accessions thereto, assets and property affixed or appurtenant thereto, parts, replacements and substitutions therefor, and all products and proceeds thereof, including dividends, distributions, interest and increases in respect thereofRefinanced.
Appears in 1 contract
Sources: Indenture (Laredo Petroleum, Inc.)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company Parent will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1i) pay dividends or make any other distributions on its Capital Stock to the Company or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness indebtedness owed to the Company or any of its Restricted Subsidiaries; provided that the priority that any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends, distributions or liquidating distributions before dividends, distributions or liquidating distributions are paid in respect of common stock of such Restricted Subsidiary shall not constitute a restriction on the ability to make dividends or distributions on Capital Stock for purposes of this Section 4.08;
(2) make loans or advances to the Company or any of its Restricted Subsidiaries (it being understood that the subordination priority of loans any preferred stock in receiving dividends or advances made liquidating distributions prior to the Company dividends or any of its Restricted Subsidiaries to other Indebtedness incurred by the Company or any of its Restricted Subsidiaries liquidating distributions being paid on common stock shall not be deemed a restriction on the ability to make distributions on Capital Stock);
(ii) make loans or advances)advances to any of its Restricted Subsidiaries; or
(3iii) sell, lease or transfer any of its properties or assets to the Company or any of its Restricted Subsidiaries.
(b) The restrictions in Section 4.08(a4.10(a) hereof will not apply to encumbrances or restrictions existing under or by reason of:
(1i) agreements governing Existing Indebtedness and the Credit Agreement as in effect on the date of this Indenture Issue Date and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those such agreements; provided that the encumbrances or restrictions contained in the amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are not not, in the good faith judgment of an Officer the Board of the Company Directors of Parent, materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements on the date of this IndentureIssue Date;
(2ii) this Indenture, the Notes and the Note Guarantees, any Exchange Notes and the related Note Guarantees to be issued pursuant to the Registration Rights Agreement and the Security Documents;
(3) agreements governing other Indebtedness permitted to be incurred under the provisions of Section 4.09 hereof and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained therein are in the reasonable good faith judgment of an Officer of the Company, either (a) not materially more restrictive, taken as a whole, than those contained in this Indenture, the Notes and the Note Guarantees or the Credit Agreement as in effect on the date of this Indenture or (b) not reasonably likely to have a material adverse effect on the ability of the Company to make required payments on the Notes;
(4iii) applicable law, rule, regulation regulation, order, approval, license, permit or ordersimilar restriction (whether or not existing on the Issue Date);
(5iv) (1) any instrument governing Indebtedness or Capital Stock of a Person acquired by the Company Parent or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness or Capital Stock was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, acquired and any amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings thereof; provided, that the encumbrances and restrictions in any such amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings are, does not in the reasonable good faith judgment of an Officer the Board of Directors of Parent materially adversely affect the ability of the Company, no more restrictive, taken as a whole, than those in effect Issuer to make scheduled payments of interest and principal on the date of the acquisitionNotes; provided further, that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be incurred; and (2) any amendment, modification, replacement or refinancing thereof; provided, however, that such encumbrances or restrictions are not, in the good faith judgment of the Board of Directors of Parent, materially more restrictive, taken as a whole, with respect to consensual encumbrances or restrictions set forth in clause (i), (ii), or (iii) of Section 4.10(a) than on such encumbrances or restrictions prior to such amendment, modification, replacement or refinancing;
(6v) customary non-assignment provisions in Hydrocarbon purchase contracts and sale or exchange agreements or similar operational agreements or in licenses, easements or leases, in each case, licenses entered into in the ordinary course of business;
(7vi) purchase money obligations for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on the property purchased or leased (plus improvements and accessions to such property, or assets or proceeds or distributions thereof) of the nature described in clause (3) of Section 4.08(a4.10(a)(iii);
(8) vii) any agreement for the sale or other disposition of the Capital Stock or assets of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its such sale or other disposition;
(9viii) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness areare not, in the reasonable good faith judgment of an Officer the Board of the CompanyDirectors of Parent, not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced, extended, renewed, refunded, replaced, defeased or discharged;
(10ix) Liens permitted to be incurred under the provisions of Section 4.12 4.14 that limit the right of the debtor to dispose of the assets subject to such LiensLiens (plus improvements and accessions to such property, or assets or proceeds or distributions thereof);
(11x) customary provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and or other similar agreements (including agreements entered into in connection with a Restricted Investment) entered into with the approval of the Company’s Board of Directors, which limitation is applicable only to the assets that are the subject of such agreements;
(12xi) encumbrances or restrictions applicable only to a Restricted Subsidiary that is not a Domestic Subsidiarycustomary provisions in Permitted Hedging Obligations;
(13xii) encumbrances or restrictions on cash or other deposits or net worth imposed by customers or lessors under contracts or leases other agreements entered into in the ordinary course of business;
(14xiii) customary restrictions on other Indebtedness incurred in compliance with Section 4.11; provided that such restrictions, taken as a whole, are, in the good faith judgment of Parent’s Board of Directors, no more materially restrictive with respect to such encumbrances and restrictions than those contained in the existing agreements referenced in clauses (i) and (ii) of this Section 4.10(b);
(xiv) encumbrances on property that exist at the time such property was acquired by Parent or any Restricted Subsidiaries;
(xv) other Indebtedness or Disqualified Stock of any Subsidiary that is not a Restricted Subsidiary so long as such encumbrances and restrictions contained in agreements of any agreement or instrument will not materially affect the types described Issuer’s ability to make anticipated principal or interest payments on the Notes (as determined in the definition of Permitted Business Investmentsgood faith by Parent);
(15xvi) encumbrances or restrictions consisting of customary non-assignment provisions in leases governing leasehold interests to the extent such provisions restrict the transfer of the lease or the property leased thereunder;
(xvii) customary Guarantees by Parent or the Issuer under non-Indebtedness obligations of a Subsidiary set forth in leases, licenses and other agreements governing Hedging Obligations incurred entered into by the Subsidiary in the ordinary course of business; and
(16xviii) restrictions or conditions contained in any encumbrance trading, netting, operating, construction, service, supply, purchase or restriction with respect other agreement to an Unrestricted Subsidiary pursuant to which Parent or by reason any of an agreement that the Unrestricted Subsidiary its Restricted Subsidiaries is a party to or entered into before in the date on which such Unrestricted Subsidiary became a Restricted Subsidiaryordinary course of business; provided that such agreement was not entered into in anticipation prohibits the encumbrance of solely the Unrestricted Subsidiary becoming a property or assets of Parent or such Restricted Subsidiary that are the subject of such agreement, the payment rights arising thereunder or the proceeds thereof and any such encumbrance or restriction does not extend to any other asset or property of Parent or such Restricted Subsidiary or the assets or property of the Company or any other Restricted Subsidiary.
(c) For purposes of determining compliance with this Section 4.10, the subordination of loans or advances made to Parent or a Restricted Subsidiary to other than the assets and property of Indebtedness incurred by Parent or any such Unrestricted Subsidiary. In each case set forth above, notwithstanding any stated limitation Restricted Subsidiary shall not be deemed a restriction on the assets ability to make loans or property that may be subject to such encumbrance or restriction, an encumbrance or restriction on a specified asset or property or group or type of assets or property may also apply to all improvements, additions, repairs, attachments or accessions thereto, assets and property affixed or appurtenant thereto, parts, replacements and substitutions therefor, and all products and proceeds thereof, including dividends, distributions, interest and increases in respect thereofadvances.
Appears in 1 contract
Sources: Indenture (Horizon Lines, Inc.)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1i) pay dividends or make any other distributions on its Capital Stock to the Company or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Company or any of its Restricted Subsidiaries; provided that the priority that any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends, distributions or liquidating distributions before dividends, distributions or liquidating distributions are paid in respect of common stock of such Restricted Subsidiary shall not constitute a restriction on the ability to make dividends or distributions on Capital Stock for purposes of this Section 4.08;
(2ii) make loans or advances to the Company or any of its Restricted Subsidiaries (it being understood that the subordination of loans or advances made to the Company or any of its Restricted Subsidiaries to other Indebtedness incurred by the Company or any of its Restricted Subsidiaries shall not be deemed a restriction on the ability to make loans or advances)Subsidiaries; or
(3iii) sell, lease or transfer any of its properties or assets to the Company or any of its Restricted Subsidiaries.
(b) The restrictions in Section 4.08(a) hereof will shall not apply to encumbrances or restrictions existing under or by reason of:
(1i) agreements governing Existing Indebtedness and the Credit Agreement Facilities as in effect on the date of this Indenture Issue Date and any amendments, modifications, restatements, modificationsrenewals, renewalsincreases, supplements, refundings, restructurings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained in the amendments, modifications, restatements, modificationsrenewals, renewalsincreases, supplements, refundings, restructurings, replacements or refinancings are not in the good faith judgment of an Officer of the Company materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements on the date of this IndentureIssue Date;
(2ii) this Indenture, the Notes, the Exchange Notes and the Note related Subsidiary Guarantees;
(3) agreements governing other Indebtedness permitted to be incurred under the provisions of Section 4.09 hereof and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained therein are in the reasonable good faith judgment of an Officer of the Company, either (a) not materially more restrictive, taken as a whole, than those contained in this Indenture, the Notes and the Note Guarantees or the Credit Agreement as in effect on the date of this Indenture or (b) not reasonably likely to have a material adverse effect on the ability of the Company to make required payments on the Notes;
(4iii) applicable law, rule, regulation or order;
(5iv) any instrument governing Indebtedness or Capital Stock of a Person acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition or assumed by the Company or any of its Restricted Subsidiaries in connection with an acquisition of all or substantially all of the assets of a Person (except to the extent such Indebtedness or Capital Stock was incurred or assumed in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, and any amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings thereof; provided, that the encumbrances and restrictions in any such amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings are, in the reasonable good faith judgment of an Officer of the Company, no more restrictive, taken as a whole, than those in effect on the date of the acquisition; provided further, that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be incurred;
(6v) customary non-assignment provisions in Hydrocarbon purchase and sale or exchange agreements or similar operational agreements or in licenses, easements or leases, in each case, licenses or other contracts entered into in the ordinary course of businessbusiness and consistent with past practices;
(7vi) purchase money obligations for property acquired in the ordinary course of business and Capital Lease Obligations permitted under this Indenture that impose restrictions of the nature described in Section 4.08(a)(iii) hereof on the property purchased or leased of the nature described in clause (3) of Section 4.08(a)leased;
(8) vii) any agreement for the sale or other disposition of a Restricted Subsidiary of the Company that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(9viii) Permitted Refinancing Indebtedness; , provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, in the reasonable good faith judgment of an Officer of the Company, are not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(10ix) Liens securing Indebtedness otherwise permitted to be incurred under the provisions of Section 4.12 hereof that limit the right of the debtor to dispose of the assets subject to such Liens;
(11x) provisions limiting with respect to the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment) entered into with the approval ordinary course of the Company’s Board of Directors, which limitation is applicable only to the assets that are the subject of such agreements;business; and
(12xi) encumbrances or restrictions applicable only to a Restricted Subsidiary that is not a Domestic Subsidiary;
(13) encumbrances or restrictions on cash or other deposits or net worth imposed by customers or lessors under contracts or leases entered into in the ordinary course of business;
(14) customary encumbrances and restrictions contained in agreements of the types described in the definition of Permitted Business Investments;
(15) agreements governing Hedging Obligations incurred in the ordinary course of business; and
(16) any encumbrance or restriction with respect to an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Unrestricted Subsidiary. In each case set forth above, notwithstanding any stated limitation on the assets or property that may be subject to such encumbrance or restriction, an encumbrance or restriction on a specified asset or property or group or type of assets or property may also apply to all improvements, additions, repairs, attachments or accessions thereto, assets and property affixed or appurtenant thereto, parts, replacements and substitutions therefor, and all products and proceeds thereof, including dividends, distributions, interest and increases in respect thereof.
Appears in 1 contract
Sources: Indenture (Interactive Voice Media (Sacramento) Corp.)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1i) pay dividends or make any other distributions on its Capital Stock to the Company or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Company or any of its Restricted Subsidiaries; provided that the priority that any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends, distributions or liquidating distributions before dividends, distributions or liquidating distributions are paid in respect of common stock of such Restricted Subsidiary shall not constitute a restriction on the ability to make dividends or distributions on Capital Stock for purposes of this Section 4.08;
(2ii) make loans or advances to the Company or any of its Restricted Subsidiaries (it being understood that the subordination of loans or advances made to the Company or any of its Restricted Subsidiaries to other Indebtedness incurred by the Company or any of its Restricted Subsidiaries shall not be deemed a restriction on the ability to make loans or advances); or
(3iii) sell, lease or transfer any of its properties or assets to the Company or any of its Restricted Subsidiaries.
(b) The restrictions in Section 4.08(a) hereof will not apply to encumbrances or restrictions existing under or by reason of:
(1i) agreements governing Existing Indebtedness and the Credit Agreement Facilities as in effect on the date of this Indenture and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained in the amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are not not, in the good faith judgment of an Officer of the Company Company, materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements on the date of this Indenture;
(2ii) this Indenture, the Notes and the Note Guarantees;
(3iii) agreements governing other Indebtedness permitted to be incurred under the provisions of Section 4.09 hereof and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained therein are not, in the reasonable good faith judgment of an Officer of the Company, either (a) not materially more restrictive, taken as a whole, than those contained in this Indenture, the Notes and the Note Guarantees or the Credit Agreement as in effect on the date of this Indenture or (b) not reasonably likely to have a material adverse effect on the ability of the Company to make required payments on the Notes;Indenture
(4iv) applicable law, rule, regulation or order;
(5v) any instrument governing Indebtedness or Capital Stock of a Person acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness or Capital Stock was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, and any amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings thereof; provided, that the encumbrances and restrictions in any such amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings are, in the reasonable good faith judgment of an Officer of the Company, no more restrictive, taken as a whole, than those in effect on the date of the acquisition; provided further, that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be incurred;
(6vi) customary non-assignment provisions in Hydrocarbon purchase and sale or exchange agreements or similar operational agreements or in licenses, easements or leases, in each case, entered into in the ordinary course of business;
(7vii) purchase money obligations for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on the property purchased or leased of the nature described in clause (3iii) of Section 4.08(a)) hereof;
(8) viii) any agreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(9ix) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, in the reasonable good faith judgment of an Officer of the Company, not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(10x) Liens permitted to be incurred under the provisions of Section 4.12 hereof that limit the right of the debtor to dispose of the assets subject to such Liens;
(11xi) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment) entered into with the approval of the Company’s Board of Directors, which limitation is applicable only to the assets that are the subject of such agreements;
(12xii) encumbrances or restrictions applicable only to a Restricted Subsidiary that is not a Domestic Subsidiary;
(13xiii) encumbrances or restrictions on cash or other deposits or net worth imposed by customers or lessors under contracts or leases entered into in the ordinary course of business;; and
(14xiv) customary encumbrances and restrictions contained in agreements of the types described in the definition of Permitted Business Investments;
(15) agreements governing Hedging Obligations incurred in the ordinary course of business; and
(16) any encumbrance or restriction with respect to an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Unrestricted Subsidiary. In each case set forth above, notwithstanding any stated limitation on the assets or property that may be subject to such encumbrance or restriction, an encumbrance or restriction on a specified asset or property or group or type of assets or property may also apply to all improvements, additions, repairs, attachments or accessions thereto, assets and property affixed or appurtenant thereto, parts, replacements and substitutions therefor, and all products and proceeds thereof, including dividends, distributions, interest and increases in respect thereof.
Appears in 1 contract
Sources: Indenture (Callon Petroleum Co)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) 6.1 The Company will not, and will not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1a) pay dividends or make any other distributions on its Capital Stock to the Company or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Company or any of its Restricted Subsidiaries; provided that the priority that any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends, distributions or liquidating distributions before dividends, distributions or liquidating distributions are paid in respect of common stock of such Restricted Subsidiary shall not constitute a restriction on the ability to make dividends or distributions on Capital Stock for purposes of this Section 4.08;
(2b) make loans or advances to the Company or any of its Restricted Subsidiaries (it being understood that the subordination of loans or advances made to the Company or any of its Restricted Subsidiaries to other Indebtedness incurred by the Company or any of its Restricted Subsidiaries shall not be deemed a restriction on the ability to make loans or advances)Subsidiaries; or
(3c) sell, lease or transfer any of its properties or assets to the Company or any of its Restricted Subsidiaries.
(b) 6.2 The restrictions in Section 4.08(a) hereof Clause 6.1 above will not apply to encumbrances or restrictions existing under or by reason of:
(1a) agreements governing Existing Indebtedness and the Credit Agreement any agreement as in effect at or entered into on the date of this Indenture Closing Date and any amendments, restatements, modifications, 189 renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained in the amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are not in the good faith judgment of an Officer of the Company materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements on the date of this IndentureClosing Date;
(2b) this Indenturethe Existing Facility, the Notes 2022 BAML Facility, the Notes, the Note Guarantee, the BAML Facility, the Intercreditor Agreement and the Note GuaranteesTransaction Security Documents;
(3c) agreements governing other Indebtedness permitted to be incurred under the provisions Clause 3 (Incurrence of Section 4.09 hereof Indebtedness and Issuance of Preferred Stock) and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained therein are in the reasonable good faith judgment of an Officer of the Company, either (a) not materially more restrictive, taken as a whole, than those contained in this Indenture, the Notes and the Note Guarantees or the Credit Agreement as in effect on the date of this Indenture or (b) not reasonably likely to have a material adverse effect on the ability of the Company to make required payments on the NotesFinance Documents;
(4d) applicable law, rule, regulation or order;
(5e) any agreement or instrument governing Indebtedness of or Capital Stock of a Person acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness agreement or Capital Stock instrument was entered into or incurred in connection with or in contemplation of such acquisition)) and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of any such agreement or instrument, provided that the amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are (i) no more restrictive or (ii) not materially less favorable as determined in good faith by the Company, than the dividend and other payment restrictions contained in such instrument at the time of such acquisition, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, and any amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings thereof; provided, that the encumbrances and restrictions in any such amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings are, in the reasonable good faith judgment of an Officer of the Company, no more restrictive, taken as a whole, than those in effect on the date of the acquisition; provided further, that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture Agreement to be incurred;
(6f) customary non-assignment provisions in Hydrocarbon purchase contracts, leases and sale or exchange agreements or similar operational agreements or in licenses, easements or leases, in each case, licenses entered into in the ordinary course of business;
(7g) purchase money obligations for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on the property purchased or leased of the nature described in clause paragraph (3c) of Section 4.08(aClause 5 (Limitation on Sale and Leaseback Transactions);
(8) h) any agreement for the sale or other disposition of the Capital Stock or all or substantially all of the property and assets of a Restricted Subsidiary of the Company that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(9i) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, in the reasonable good faith judgment of an Officer of the Company, are not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(10j) Liens permitted to be incurred under the provisions of Section 4.12 Clause 4 (Liens) that limit the right of the debtor to dispose of the assets subject to such Liens;
(11k) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a 190 Restricted Investment) entered into with the approval of the Company’s Board of Directors, which limitation is applicable only to the assets that are the subject of such agreements;
(12l) encumbrances or restrictions applicable only to a Restricted Subsidiary that is not a Domestic Subsidiary;
(13) encumbrances or restrictions on cash or other deposits or net worth imposed by customers or lessors suppliers or required by insurance, surety or bonding companies, in each case, under contracts or leases entered into in the ordinary course of business;
(14m) customary encumbrances and restrictions contained in agreements of the types described in the definition of Permitted Business InvestmentsHedging Obligations entered into from time to time;
(15n) agreements governing Hedging Obligations incurred in any mortgage financing or mortgage refinancing that imposes restrictions on the ordinary course of businessreal property (including any heritage building rights) securing such Indebtedness; and
(16o) any encumbrance or restriction with respect to an Unrestricted Subsidiary agreements governing Indebtedness incurred pursuant to or by reason paragraphs (e) and (p) of an agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Unrestricted Subsidiary. In each case set forth above, notwithstanding any stated limitation on the assets or property that may be subject to such encumbrance or restriction, an encumbrance or restriction on a specified asset or property or group or type of assets or property may also apply to all improvements, additions, repairs, attachments or accessions thereto, assets and property affixed or appurtenant thereto, parts, replacements and substitutions therefor, and all products and proceeds thereof, including dividends, distributions, interest and increases in respect thereof.Clause 3.2 (
Appears in 1 contract
Sources: Revolving Facility Agreement (Manchester United PLC)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock to the Company or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness or other obligations owed to the Company or any of its Restricted Subsidiaries; provided that the priority that any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends, distributions or liquidating distributions before dividends, distributions or liquidating distributions are paid in respect of common stock of such Restricted Subsidiary shall not constitute a restriction on the ability to make dividends or distributions on Capital Stock for purposes of this Section 4.08;
(2) make loans or advances to the Company or any of its Restricted Subsidiaries (it being understood that the subordination of loans or advances made to the Company or any of its Restricted Subsidiaries to other Indebtedness incurred by the Company or any of its Restricted Subsidiaries shall not be deemed a restriction on the ability to make loans or advances)Subsidiaries; or
(3) sell, lease or transfer any of its properties or assets to the Company or any of its Restricted Subsidiaries.
(b) The However, the preceding restrictions in Section 4.08(a) hereof will not apply to encumbrances or restrictions existing under or by reason of:
(1) agreements governing Existing Indebtedness and the Credit Agreement as in effect on the date of this Indenture and any amendments, modifications, restatements, modificationsrenewals, renewalsincreases, supplements, refundings, replacements or refinancings of those agreementsagreements or the Indebtedness to which they relate; provided that the encumbrances or restrictions contained in the amendments, modifications, restatements, modificationsrenewals, renewalsincreases, supplements, refundings, replacements replacement or refinancings are not in the good faith judgment of an Officer of the Company materially more restrictive, taken as a whole, with respect to such dividend dividend, distribution and other payment restrictions than those contained in those agreements on the date of this IndentureIndenture as determined in good faith by the Company;
(2) this Indenture, the Notes and the Note Guarantees;
(3) agreements governing other Indebtedness permitted to be incurred under the provisions of Section 4.09 hereof and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained therein are in the reasonable good faith judgment of an Officer of the Company, either (a) not materially more restrictive, taken as a whole, than those contained in this Indenture, the Notes and the Note Guarantees or as determined in good faith by the Credit Agreement as in effect on the date of this Indenture or (b) not reasonably likely to have a material adverse effect on the ability of the Company to make required payments on the NotesCompany;
(4) applicable law, rule, regulation or order;
(5) any instrument governing Indebtedness or Capital Stock of a Person acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness or Capital Stock was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, and any amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings thereof; provided, that the encumbrances and restrictions in any such amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings are, in the reasonable good faith judgment of an Officer of the Company, no more restrictive, taken as a whole, than those in effect on the date of the acquisition; provided further, that, in the case of Indebtedness, such Indebtedness was otherwise permitted by the terms of this Indenture to be incurred, and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are not materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements on the date of such acquisition as determined in good faith by the Company;
(6) customary non-assignment provisions in Hydrocarbon purchase and sale or exchange agreements or similar operational agreements or in licenses, easements sublicenses, leases or leasessubleases, in each case, case entered into in the ordinary course of businessbusiness and consistent with past practices;
(7) Capital Lease Obligations, mortgage financings or purchase money obligations obligations, in each case for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on the that property purchased or leased of the nature described in clause (3) of the preceding Section 4.08(a);
(8) any agreement for the sale or other disposition of a Restricted Subsidiary of the Company that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(9) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, in the reasonable good faith judgment of an Officer of the Company, are not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(10) Liens permitted to be incurred under the provisions of Section 4.12 hereof that limit the right of the debtor to dispose of the assets subject to such Liens;
(11) provisions limiting with respect to the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment) entered into with the approval ordinary course of the Company’s Board of Directors, which limitation is applicable only to the assets that are the subject of such agreementsbusiness;
(12) encumbrances any agreement or restrictions applicable instrument relating to any property or assets acquired after the date of this Indenture, so long as such encumbrance or restriction relates only to a Restricted Subsidiary that the property or assets so acquired and is not a Domestic Subsidiaryand was not created in anticipation of such acquisitions;
(13) encumbrances or restrictions on cash or other deposits or net worth imposed by customers customers, suppliers or lessors landlords under contracts or leases entered into in the ordinary course of business;
(14) customary encumbrances and restrictions contained in agreements the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if the encumbrance or restriction applies only in the event of a payment default or default with respect to a financial covenant contained in such Indebtedness or agreement and such encumbrance or restriction is not materially more disadvantageous to the Holders of the types described Notes than is customary in comparable financings (as determined in good faith by the definition of Permitted Business Investments;Company) and the Company determines that any such encumbrance or restriction will not materially affect any Issuer’s ability to make principal or interest payments on the Notes; and
(15) agreements governing Hedging Obligations incurred restrictions on the sale, lease or transfer of property or assets arising or agreed to in the ordinary course of business; and
(16) any encumbrance or restriction with respect to an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was , not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets or property of the Company or any other Restricted Subsidiary other than in any manner material to the assets and property of such Unrestricted Company or any Restricted Subsidiary. In each case set forth above, notwithstanding any stated limitation on the assets or property that may be subject to such encumbrance or restriction, an encumbrance or restriction on a specified asset or property or group or type of assets or property may also apply to all improvements, additions, repairs, attachments or accessions thereto, assets and property affixed or appurtenant thereto, parts, replacements and substitutions therefor, and all products and proceeds thereof, including dividends, distributions, interest and increases in respect thereof.
Appears in 1 contract
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock to the Company or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Company or any of its Restricted Subsidiaries; provided that the priority that any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends, distributions or liquidating distributions before dividends, distributions or liquidating distributions are paid in respect of common stock of such Restricted Subsidiary shall not constitute a restriction on the ability to make dividends or distributions on Capital Stock for purposes of this Section 4.08;
(2) make loans or advances to the Company or any of its Restricted Subsidiaries (it being understood that the subordination of loans or advances made to the Company or any of its Restricted Subsidiaries to other Indebtedness incurred by the Company or any of its Restricted Subsidiaries shall not be deemed a restriction on the ability to make loans or advances)Subsidiaries; or
(3) sell, lease or transfer any of its properties or assets to the Company or any of its Restricted Subsidiaries.
(b) The . However, the preceding restrictions in Section 4.08(a) hereof will shall not apply to encumbrances or restrictions existing under or under, by reason ofof or with respect to:
(1) agreements governing the Credit Agreement, Existing Indebtedness and the Credit Agreement as or any other agreements in effect on the date of this Indenture hereof and any amendments, modifications, restatements, modificationsrenewals, renewalsextensions, supplements, refundings, replacements or refinancings of those agreementsthereof; provided that the encumbrances or and restrictions contained in the any such amendments, modifications, restatements, modificationsrenewals, renewalsextensions, supplements, refundings, replacements replacement or refinancings are not in the good faith judgment of an Officer of the Company materially no more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements effect on the date of this Indenturehereof;
(2) this Indenture, the Notes and the Note Subsidiary Guarantees;
(3) agreements governing other Indebtedness permitted to be incurred under the provisions of Section 4.09 hereof and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained therein are in the reasonable good faith judgment of an Officer of the Company, either (a) not materially more restrictive, taken as a whole, than those contained in this Indenture, the Notes and the Note Guarantees or the Credit Agreement as in effect on the date of this Indenture or (b) not reasonably likely to have a material adverse effect on the ability of the Company to make required payments on the Notesapplicable law;
(4) applicable lawany Person, ruleor the property or assets of such Person, regulation or order;
(5) any instrument governing Indebtedness or Capital Stock of a Person acquired by the Company or any of its Restricted Subsidiaries as in effect Subsidiaries, existing at the time of such acquisition (except to the extent such Indebtedness or Capital Stock was and not incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, Person or the properties or assets of any Person, other than the Person, or the property or assets of the such Person, so acquired, acquired and any amendments, modifications, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings thereof; provided, provided that the encumbrances and restrictions in any such amendments, modifications, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements replacement or refinancings are, in the reasonable good faith judgment of an Officer of the Company, are no more restrictive, taken as a whole, than those in effect on the date of the acquisition; provided further, that;
(5) customary supermajority voting provisions and customary provisions with respect to the disposition or distribution of assets or property, in the each case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be incurredcontained in joint venture agreements;
(6) in the case of clause (3) of the first paragraph of this Section 4.13:
(a) that restrict in a customary non-manner the subletting, assignment provisions in Hydrocarbon purchase and sale or exchange agreements transfer of any property or asset that is a lease, license, conveyance or contract or similar operational agreements property or in licensesasset,
(b) existing by virtue of any transfer of, easements agreement to transfer, option or leasesright with respect to, in each caseor Lien on, entered into any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by the Indenture, or
(c) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or any Restricted Subsidiary;
(7) purchase money obligations for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on the property purchased or leased of the nature described in clause (3) of Section 4.08(a);
(8) any agreement for the sale or other disposition of all or substantially all of the Capital Stock of, or property and assets of, a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other dispositionSubsidiary;
(9) 8) Permitted Refinancing Indebtedness; , provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, in the reasonable good faith judgment of an Officer of the Company, not materially are no more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(109) Liens permitted contained in the terms of any Indebtedness or any agreement pursuant to be incurred under which such Indebtedness was issued if:
(a) the provisions encumbrance or restriction applies only in the event of Section 4.12 that limit a payment default or a default with respect to a financial covenant contained in such Indebtedness or agreement,
(b) the right encumbrance or restriction is not materially more disadvantageous to the Holders of the debtor to dispose of Notes than is customary in comparable financings (as determined by the assets subject to such Liens;
(11) provisions limiting the disposition or distribution of assets or property Company in joint venture agreementsgood faith), asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment) entered into with the approval of the Company’s Board of Directors, which limitation is applicable only to the assets that are the subject of such agreements;
(12) encumbrances or restrictions applicable only to a Restricted Subsidiary that is not a Domestic Subsidiary;
(13) encumbrances or restrictions on cash or other deposits or net worth imposed by customers or lessors under contracts or leases entered into in the ordinary course of business;
(14) customary encumbrances and restrictions contained in agreements of the types described in the definition of Permitted Business Investments;
(15) agreements governing Hedging Obligations incurred in the ordinary course of business; and
(16c) any encumbrance or restriction with respect to an Unrestricted Subsidiary pursuant to or by reason of an agreement the Company determines that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does will not extend materially affect the Company's ability to any assets make principal or property of the Company or any other Restricted Subsidiary other than the assets and property of such Unrestricted Subsidiary. In each case set forth above, notwithstanding any stated limitation interest payments on the assets or property that may be subject to such encumbrance or restriction, an encumbrance or restriction on a specified asset or property or group or type of assets or property may also apply to all improvements, additions, repairs, attachments or accessions thereto, assets and property affixed or appurtenant thereto, parts, replacements and substitutions therefor, and all products and proceeds thereof, including dividends, distributions, interest and increases in respect thereofNotes.
Appears in 1 contract
Sources: Indenture (O Charleys Inc)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock to the Company or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness indebtedness owed to the Company or any of its Restricted Subsidiaries; provided that the priority that any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends, distributions or liquidating distributions before dividends, distributions or liquidating distributions are paid in respect of common stock of such Restricted Subsidiary shall not constitute a restriction on the ability to make dividends or distributions on Capital Stock for purposes of this Section 4.08;
(2) make loans or advances to the Company or any of its Restricted Subsidiaries (it being understood that the subordination priority of loans any preferred stock in receiving dividends or advances made liquidating distributions prior to the Company dividends or any of its Restricted Subsidiaries to other Indebtedness incurred by the Company or any of its Restricted Subsidiaries liquidating distributions being paid on common stock shall not be deemed a restriction on the ability to make distributions on Capital Stock);
(2) make loans or advances)advances to any of its Restricted Subsidiaries; or
(3) sell, lease or transfer any of its properties or assets to the Company or any of its Restricted Subsidiaries.
(b) The restrictions in Section 4.08(a4.10(a) hereof will not apply to encumbrances or restrictions existing under or by reason of:
(1) agreements governing Existing Indebtedness and the Credit Agreement as in effect on the date of this Indenture Issue Date and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those such agreements; provided that the encumbrances or restrictions contained in the amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are not not, in the good faith judgment of an Officer the Board of Directors of the Company Company, materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements on the date of this IndentureIssue Date;
(2) this Indenture, the Notes and the Note GuaranteesGuarantees and the Security Documents;
(3) agreements governing other Indebtedness permitted to be incurred under the provisions of Section 4.09 hereof and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained therein are in the reasonable good faith judgment of an Officer of the Company, either (a) not materially more restrictive, taken as a whole, than those contained in this Indenture, the Notes and the Note Guarantees or the Credit Agreement as in effect on the date of this Indenture or (b) not reasonably likely to have a material adverse effect on the ability of the Company to make required payments on the Notes;
(4) applicable law, rule, regulation regulation, order, approval, license, permit or ordersimilar restriction (whether or not existing on the Issue Date);
(54) (a) any instrument governing Indebtedness or Capital Stock of a Person acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness or Capital Stock was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, acquired and any amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings thereof; provided, that the encumbrances and restrictions in any such amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings are, does not in the reasonable good faith judgment of an Officer the Board of Directors of the Company, no more restrictive, taken as a whole, than those in effect Company materially adversely affect the ability of the Company to make scheduled payments of interest and principal on the date of the acquisitionNotes; provided further, that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be incurred; and (b) any amendment, modification, replacement or refinancing thereof; provided, however, that such encumbrances or restrictions are not, in the good faith judgment of the Board of Directors of the Company, materially more restrictive, taken as a whole, with respect to consensual encumbrances or restrictions set forth in clause (1), (2) or (3) of Section 4.10(a) than on such encumbrances or restrictions prior to such amendment, modification, replacement or refinancing;
(65) customary non-assignment provisions in Hydrocarbon purchase contracts and sale or exchange agreements or similar operational agreements or in licenses, easements or leases, in each case, licenses entered into in the ordinary course of business;
(76) purchase money obligations for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on the property purchased or leased (plus improvements and accessions to such property, or assets or proceeds or distributions thereof) of the nature described in clause (3) of Section 4.08(a4.10(a)(3);
(8) 7) any agreement for the sale or other disposition of the Capital Stock or assets of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its such sale or other disposition;
(9) 8) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness areare not, in the reasonable good faith judgment of an Officer the Board of Directors of the Company, not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced, extended, renewed, refunded, replaced, defeased or discharged;
(109) Liens permitted to be incurred under the provisions of the covenant described above under Section 4.12 4.14 that limit the right of the debtor to dispose of the assets subject to such LiensLiens (plus improvements and accessions to such property, or assets or proceeds or distributions thereof);
(10) customary provisions in joint venture agreements or other similar agreements;
(11) customary provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment) entered into with the approval of the Company’s Board of Directors, which limitation is applicable only to the assets that are the subject of such agreementsPermitted Hedging Obligations;
(12) encumbrances or restrictions applicable only to a Restricted Subsidiary that is not a Domestic Subsidiary;
(13) encumbrances or restrictions on cash or other deposits or net worth imposed by customers or lessors under contracts or leases other agreements entered into in the ordinary course of business;
(13) restrictions on other Indebtedness incurred in compliance with Section 4.11; provided that such restrictions, taken as a whole, are, in the good faith judgment of the Company’s Board of Directors, no more materially restrictive with respect to such encumbrances and restrictions than those contained in the existing agreements referenced in clauses (1) and (2) of this Section 4.10(b);
(14) customary encumbrances on property that exist at the time such property was acquired by the Company or any Restricted Subsidiaries;
(15) other Indebtedness or Disqualified Stock of any Subsidiary that is not a Restricted Subsidiary so long as such encumbrances and restrictions contained in agreements of any agreement or instrument will not materially affect the types described Company’s ability to make anticipated principal or interest payments on the Notes (as determined in good faith by the definition of Permitted Business InvestmentsCompany);
(1516) encumbrances or restrictions consisting of customary non-assignment provisions in leases governing leasehold interests to the extent such provisions restrict the transfer of the lease or the property leased thereunder;
(17) customary guarantees by the Company under non-Indebtedness obligations of a Subsidiary set forth in leases, licenses and other agreements governing Hedging Obligations incurred entered into by the Subsidiary in the ordinary course of business; and
(1618) restrictions or conditions contained in any encumbrance trading, netting, operating, construction, service, supply, purchase or restriction with respect other agreement to an Unrestricted Subsidiary pursuant to which the Company or by reason any of an agreement that the Unrestricted Subsidiary its Restricted Subsidiaries is a party to or entered into before in the date on which such Unrestricted Subsidiary became a Restricted Subsidiaryordinary course of business; provided that such agreement was not entered into in anticipation prohibits the encumbrance of solely the property or assets of the Unrestricted Subsidiary becoming a Company or such Restricted Subsidiary that are the subject of such agreement, the payment rights arising thereunder or the proceeds thereof and any such encumbrance or restriction does not extend to any assets other asset or property of the Company or any other such Restricted Subsidiary other than the assets and property of such Unrestricted Subsidiary. In each case set forth above, notwithstanding any stated limitation on or the assets or property that may of any other Restricted Subsidiary.
(c) For purposes of determining compliance with this Section 4.10, the subordination of loans or advances made to the Company or a Restricted Subsidiary to other Indebtedness incurred by the Company or any such Restricted Subsidiary shall not be subject to such encumbrance or restriction, an encumbrance or deemed a restriction on a specified asset the ability to make loans or property or group or type of assets or property may also apply to all improvements, additions, repairs, attachments or accessions thereto, assets and property affixed or appurtenant thereto, parts, replacements and substitutions therefor, and all products and proceeds thereof, including dividends, distributions, interest and increases in respect thereofadvances.
Appears in 1 contract
Sources: Indenture (Horizon Lines, Inc.)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock to the Company or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness Debt owed to the Company or any of its Restricted Subsidiaries; provided that the priority that any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends, distributions or liquidating distributions before dividends, distributions or liquidating distributions are paid in respect of common stock of such Restricted Subsidiary shall not constitute a restriction on the ability to make dividends or distributions on Capital Stock for purposes of this Section 4.08;
(2) make loans or advances to the Company or any of its Restricted Subsidiaries (it being understood that the subordination of loans or advances made to the Company or any of its Restricted Subsidiaries to other Indebtedness incurred by the Company or any of its Restricted Subsidiaries shall not be deemed a restriction on the ability to make loans or advances)Subsidiaries; or
(3) sell, lease or transfer any of its properties or assets to the Company or any of its Restricted Subsidiaries.
(b) The restrictions in foregoing Section 4.08(a4.12(a) hereof will not apply to encumbrances or restrictions existing under or by reason of:
(1) the Facility, the Corporate Revolver and other agreements governing Existing Indebtedness existing Debt and the Credit Agreement Facilities, in each case as in effect on the date of this Indenture Issue Date and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained in the amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of existing Debt are not not, in the good faith judgment of an Officer of the Company Company, materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements on the date of this IndentureIssue Date;
(2) this Indenture, the Notes Notes, the Note Guarantees and the Note GuaranteesSecurity Documents;
(3) agreements governing other Indebtedness Debt permitted to be incurred under the provisions of Section Incurred pursuant to Section 4.09 hereof and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided (A) that the encumbrances or and restrictions contained therein are not materially more disadvantageous to the holders of the Notes than is customary in comparable financings (as determined in the reasonable good faith judgment of an Officer of the Company, ) and (B) either (ax) not materially more restrictive, taken as a whole, than those contained in this Indenture, the Notes and the Note Guarantees or the Credit Agreement as in effect on the date of this Indenture or (b) not reasonably likely to have a material adverse effect on the ability of the Company determines that such encumbrance or restriction will not adversely affect the Company’s ability to make required principal and interest payments on the Notesnotes as and when they come due or (y) such encumbrances and restrictions apply only during the continuance of a default in respect of a payment or financial maintenance covenant relating to such Debt;
(4) applicable law, rule, regulation or order;
(5) any instrument or agreement governing Indebtedness Debt or Capital Stock of a Person acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness Debt or Capital Stock was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, and any amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings thereof; provided, that the encumbrances and restrictions in any such amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings are, in the reasonable good faith judgment of an Officer of the Company, no more restrictive, taken as a whole, than those in effect on the date of the acquisition; provided further, that, that in the case of IndebtednessDebt, such Indebtedness Debt was permitted by the terms of this Indenture to be incurredIncurred;
(6) customary non-assignment provisions in Hydrocarbon purchase contracts and sale or exchange agreements or similar operational agreements or in licenses, easements or leases, in each case, licenses entered into in the ordinary course of business;
(7) purchase money obligations in the case of Section 4.12(a)(3), any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties), license or similar contract, or the assignment or transfer of any such lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties), license (including, without limitation, licenses of intellectual property) or other contract;
(B) contained in mortgages, pledges or other security agreements permitted under an indenture securing Debt of the Company or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements;
(C) contained in any agreement creating Hedging Obligations permitted from time to time under this Indenture;
(D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary; or
(E) restrictions on cash or other deposits imposed by customers under contracts entered into in the ordinary course of business;
(8) provisions with respect to the disposition or distribution of assets or property in operating agreements, joint venture agreements, development agreements, area of mutual interest agreements and other agreements that are customary in the Oil and Gas Business and entered into in the ordinary course of business, which provisions apply only to the assets that are the subject of such agreements;
(9) Purchase Money Obligations for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on the property purchased or leased of the nature described in clause (3) of Section 4.08(aSection 4.12(a)(3);
(8) 10) any agreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(911) Permitted Refinancing IndebtednessDebt; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, in the reasonable good faith judgment of an Officer of the Company, Debt are not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness Debt being refinanced;
(1012) Liens permitted to be incurred under the provisions of Section 4.12 that limit the right of the debtor pursuant to dispose of the assets subject to such Liens;
(11) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment) entered into with the approval of the Company’s Board of Directors, which limitation is applicable only to the assets that are the subject of such agreements;
(12) encumbrances or restrictions applicable only to a Restricted Subsidiary that is not a Domestic SubsidiarySection 4.10;
(13) encumbrances or restrictions on cash or other deposits or net worth imposed by customers or lessors under contracts or leases entered into in the ordinary course of business;Project Finance Debt; and
(14) customary encumbrances and restrictions contained in agreements of the types described in the definition of any agreement or instrument governing a Permitted Business Investments;
(15) agreements governing Hedging Obligations incurred in the ordinary course of business; and
(16) any encumbrance or restriction with respect to an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Unrestricted Subsidiary. In each case set forth above, notwithstanding any stated limitation on the assets or property that may be subject to such encumbrance or restriction, an encumbrance or restriction on a specified asset or property or group or type of assets or property may also apply to all improvements, additions, repairs, attachments or accessions thereto, assets and property affixed or appurtenant thereto, parts, replacements and substitutions therefor, and all products and proceeds thereof, including dividends, distributions, interest and increases in respect thereofInvestment.
Appears in 1 contract
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock to the Company or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Company or any of its Restricted Subsidiaries; provided that the priority that any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends, distributions or liquidating distributions before dividends, distributions or liquidating distributions are paid in respect of common stock of such Restricted Subsidiary shall not constitute a restriction on the ability to make dividends or distributions on Capital Stock for purposes of this Section 4.08;
(2) make loans or advances to the Company or any of its Restricted Subsidiaries (it being understood that the subordination of loans or advances made to the Company or any of its Restricted Subsidiaries to other Indebtedness incurred by the Company or any of its Restricted Subsidiaries shall not be deemed a restriction on the ability to make loans or advances)Subsidiaries; or
(3) sell, lease or transfer any of its properties or assets to the Company or any of its Restricted Subsidiaries.
(b) The However, the preceding restrictions in Section 4.08(a) hereof will not apply to encumbrances or restrictions existing under or by reason of:
(1) agreements governing Existing Indebtedness and any other agreement, including the Credit Agreement, the 2025 Senior Notes Indenture, the 2027 Senior Notes Indenture, the Intercreditor Agreement and the other Security Documents, as in effect on the date of this Indenture and any amendments, restatements, modifications, renewals, increases, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained in the amendments, restatements, modifications, renewals, increases, supplements, refundings, replacements or refinancings are not in the good faith judgment of an Officer of the Company materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements on the date of this Indenture;
(2) this Indenture, the Notes and the Note Guarantees;
(3) agreements governing other Indebtedness permitted to be incurred under the provisions of Section 4.09 hereof and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained therein are in the reasonable good faith judgment of an Officer of the Company, either (a) not materially more restrictive, taken as a whole, than those contained in this Indenture, the Notes and the Note Guarantees or the Credit Agreement as in effect on the date of this Indenture or (b) not reasonably likely to have a material adverse effect on the ability of the Company to make required payments on the Notes;
(4) applicable law, rule, regulation or order;
(54) any instrument governing Indebtedness or Capital Stock of a Person acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness or Capital Stock was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, and any amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings thereof; provided, that the encumbrances and restrictions in any such amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings are, in the reasonable good faith judgment of an Officer of the Company, no more restrictive, taken as a whole, than those in effect on the date of the acquisition; provided further, that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be incurred;
(65) customary non-assignment provisions in Hydrocarbon purchase contracts, licenses and sale or exchange other commercial agreements or similar operational agreements or in licenses, easements or leases, in each case, entered into in the ordinary course of business;
(76) purchase money obligations for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on the property purchased or leased of the nature described in clause (3) of Section 4.08(a)) hereof;
(8) 7) any agreement for the sale or other disposition of all or substantially all of the Capital Stock or assets of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(9) 8) Permitted Refinancing Indebtedness; provided that the encumbrances or restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, in the reasonable good faith judgment of an Officer the senior management or Board of Directors of the Company, not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(109) Liens any restriction on the transfer of assets under any Lien permitted to be incurred under this Indenture imposed by the provisions of Section 4.12 that limit the right holder of the debtor to dispose of the assets subject to such LiensLien;
(1110) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment) entered into the ordinary course of business or with the approval of the Company’s Board of Directors, which limitation is applicable only to the assets that are the subject of such agreements;
(1211) encumbrances or restrictions applicable only to a Restricted Subsidiary that is not a Domestic Subsidiary;
(13) encumbrances or restrictions on cash or other deposits or net worth imposed by customers or lessors under contracts or leases entered into in the ordinary course of business;
(14) customary encumbrances and restrictions contained in agreements of the types described in the definition of Permitted Business Investments;
(15) agreements governing Hedging Obligations incurred in the ordinary course of business; and
(1612) any encumbrance or restriction with respect to an Unrestricted Subsidiary pursuant to or by reason of an other agreement that the Unrestricted Subsidiary is a party to or entered into before governing Indebtedness incurred after the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided of this Indenture that such agreement was not entered into contains encumbrances or other restrictions that are, in anticipation the good faith judgment of the Unrestricted Subsidiary becoming Company, no more restrictive in any material respect taken as a Restricted Subsidiary whole than those encumbrances and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Unrestricted Subsidiary. In each case set forth above, notwithstanding any stated limitation on the assets or property restrictions that may be subject to such encumbrance or restriction, an encumbrance or restriction on a specified asset or property or group or type of assets or property may also apply to all improvements, additions, repairs, attachments or accessions thereto, assets and property affixed or appurtenant thereto, parts, replacements and substitutions therefor, and all products and proceeds thereof, including dividends, distributions, interest and increases are customary in respect thereofcomparable financings.
Appears in 1 contract
Sources: Indenture (B&G Foods, Inc.)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company Partnership will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock to the Company Partnership or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Company Partnership or any of its Restricted Subsidiaries; provided that (i) the priority that any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends, distributions dividends or liquidating distributions before dividends, distributions dividends or liquidating distributions are paid in respect of common stock of such Restricted Subsidiary shall not constitute a restriction on the ability to pay or make dividends or distributions on Capital Stock for purposes of this Section 4.084.08 and (ii) the subordination of Indebtedness owed to the Partnership or any Restricted Subsidiary to other Indebtedness incurred by any Restricted Subsidiary shall not be deemed a restriction on the ability to pay Indebtedness;
(2) make loans or advances to the Company Partnership or any of its Restricted Subsidiaries (it being understood that the subordination of loans or advances made to the Company Partnership or any of its Restricted Subsidiaries Subsidiary to other Indebtedness incurred by the Company Partnership or any of its Restricted Subsidiaries Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its properties or assets to the Company Partnership or any of its Restricted Subsidiaries.
(b) The restrictions in Section 4.08(a) hereof will not apply to encumbrances or restrictions existing under or by reason of:
(1) agreements governing Existing Indebtedness and the Credit Agreement Facilities as in effect on the date of this Indenture and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained in the amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are not in the good faith judgment of an Officer of the Company materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements on the date of this Indenture, as determined in good faith by the Partnership;
(2) this Indenture, the Notes and the Note Guarantees;
(3) agreements governing other Indebtedness permitted to be incurred under the provisions of Section 4.09 hereof and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained therein are in the reasonable good faith judgment of an Officer of the Company, either (a) not materially more restrictive, taken as a whole, than those contained in this Indenture, the Notes and the Note Guarantees or the Credit Agreement as in effect on the date of this Indenture or (b) not reasonably likely to have a material adverse effect on Indenture, as determined in good faith by the ability of the Company to make required payments on the NotesPartnership;
(4) applicable law, rule, regulation regulation, order, approval, license, permit or ordersimilar restriction;
(5) any instrument governing Indebtedness or Capital Stock or other agreement of a Person acquired (including by merger or consolidation), or the assets of which are acquired, by the Company Partnership or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness or Capital Stock or other agreement was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, and any amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings thereof; provided, that the encumbrances and restrictions in any such amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings are, in the reasonable good faith judgment of an Officer of the Company, no more restrictive, taken as a whole, than those in effect on the date of the acquisition; provided further, that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be incurred;
(6) customary non-assignment provisions in Hydrocarbon purchase and sale or exchange agreements or similar operational agreements or in licenses, easements or leases, in each case, entered into in the ordinary course of business;
(7) purchase money obligations for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on the property purchased or leased of the nature described in clause (3) of Section 4.08(a);
(8) any agreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(9) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, in the reasonable good faith judgment of an Officer of the Company, are not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced, as determined in good faith by the Partnership;
(10) Liens permitted to be incurred under the provisions of Section 4.12 that limit the right of the debtor to dispose of the assets subject to such Liens;
(11) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements, shareholders’ agreements, partnership agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment) entered into with the approval of the Company’s Board of DirectorsDirectors of the Partnership or in the ordinary course of business, which limitation is applicable only to the assets or property that are is the subject of such agreements;
(12) encumbrances any agreement or restrictions applicable instrument relating to any property or assets acquired after the date of this Indenture, so long as such encumbrance or restriction relates only to a Restricted Subsidiary that the property or assets so acquired and is not a Domestic Subsidiaryand was not created in anticipation of such acquisition;
(13) encumbrances or restrictions on cash cash, Cash Equivalents or other deposits or net worth requirements imposed by customers or lessors under contracts or leases entered into in the ordinary course of business;
(14) customary any Preferred Stock issued by a Restricted Subsidiary of the Partnership; provided that issuance of such Preferred Stock is permitted pursuant to Section 4.09 hereof and the terms of such Preferred Stock do not expressly restrict the ability of a Restricted Subsidiary of the Partnership to pay dividends or make any other distributions on its Equity Interests (other than requirements to pay dividends or liquidation preferences on such Preferred Stock prior to paying any dividends or making any other distributions on such other Equity Interests);
(15) in the case of any Foreign Subsidiary, any encumbrance or restriction contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was incurred if either (a) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant in such Indebtedness or agreement or (b) any such encumbrance or restriction will not materially affect the Partnership’s ability to make principal or interest payments on the Notes, as determined in good faith by the Partnership;
(16) Oil and Gas Hedging Contracts or Interest Rate Agreements permitted from time to time under this Indenture;
(17) encumbrances and restrictions contained in agreements of the types described in the definition of Permitted Business Investments;
(15) agreements governing Hedging Obligations incurred contracts entered into in the ordinary course of business; and
(16) , not relating to any encumbrance Indebtedness, and that do not, taken as a whole, detract from the value of, or restriction with respect from the ability of the Partnership and its Restricted Subsidiaries to an Unrestricted realize the value of, property or assets of the Partnership or any Restricted Subsidiary pursuant in any manner material to the Partnership or by reason of an agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became a any Restricted Subsidiary, as determined in good faith by the Partnership; provided that such agreement was encumbrances or restrictions will not entered into in anticipation of materially affect the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance Partnership’s ability to make principal or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Unrestricted Subsidiary. In each case set forth above, notwithstanding any stated limitation interest payments on the assets or property that may be subject to such encumbrance or restrictionNotes, an encumbrance or restriction on a specified asset or property or group or type of assets or property may also apply to all improvements, additions, repairs, attachments or accessions thereto, assets and property affixed or appurtenant thereto, parts, replacements and substitutions therefor, and all products and proceeds thereof, including dividends, distributions, interest and increases as determined in respect thereofgood faith by the Partnership; or
(18) any Permitted Investment.
Appears in 1 contract
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary of the Company to:
(1) pay dividends or make any other distributions on its Capital Stock to the Company or any of its Restricted Subsidiaries, (or with respect to any other interest or participation in, or measured by, its profits, ) to the Company or any of its Restricted Subsidiaries or pay any Indebtedness owed to the Company or any of its Restricted Subsidiaries; provided Subsidiaries (it being understood that the priority that of any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends, distributions dividends or liquidating distributions before dividends, distributions prior to dividends or liquidating distributions are being paid in respect of common stock of such Restricted Subsidiary on Capital Stock shall not constitute be deemed a restriction on the ability to make dividends or distributions on Capital Stock for purposes of this Section 4.08Stock);
(2) make loans or advances to the Company or any of its Restricted Subsidiaries (it being understood that the subordination of the loans or advances made to the Company or any of its Restricted Subsidiaries Subsidiary to other Indebtedness incurred Incurred by the Company or any of its Restricted Subsidiaries Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its properties or assets to the Company or any of its Restricted SubsidiariesSubsidiaries (it being understood that such transfers shall not include any type of transfer described in clause (1) or (2) of this Section 4.12(a)).
(b) The restrictions in Notwithstanding the foregoing, Section 4.08(a4.12(a) hereof will not apply to encumbrances or restrictions existing under or by reason of:
(1) agreements (including agreements governing Existing Indebtedness and Debt Facilities (including the Senior Credit Agreement Facilities)) as in effect on the date of this Indenture Issue Date and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained in the amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are not in the good faith judgment of an Officer of the Company materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements on the date of this IndentureIssue Date, as determined by the Company in its reasonable and good faith judgment;
(2) this Indenture, the Notes and the Note Guarantees;
(3) agreements governing other Indebtedness permitted Guarantees and documentation related to be incurred under each of the provisions of Section 4.09 hereof foregoing and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances amendments, restatements, modifications, renewals, supplements. refundings, replacements or restrictions contained therein refinancings are in the reasonable good faith judgment of an Officer of the Company, either (a) not materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in this Indenture, the Notes and the Note Guarantees and related documentation on the Issue Date, as determined by the Company in its reasonable and good faith judgment;
(3) agreements or other documents governing other Indebtedness permitted to be Incurred pursuant to Section 4.09 and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that either (A) the Credit Agreement provisions relating to such encumbrance or restriction contained in such agreements or other documents are not materially more restrictive, taken as a whole, as determined by the Company in its reasonable and good faith judgment, than those in effect on the date of Issue Date or contained in this Indenture Indenture, the Notes, the Note Guarantees or documentation related to the foregoing or (bB) any such encumbrance or restriction contained in such agreements or documents does not reasonably likely to have prohibit (except upon a material adverse effect on default or an event of default thereunder) the ability payment of dividends in a manner that, as determined by the Company in good faith, would result in the Company being unable to, to make required principal and interest payments on the NotesNotes as and when they come due;
(4) applicable law, rule, regulation regulation, approval, permit or order;
(5) any agreement or instrument governing Indebtedness or Capital Stock of a Person acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness or Capital Stock was incurred Incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, and any amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings thereof; provided, that the encumbrances and restrictions in any such amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings are, in the reasonable good faith judgment of an Officer of the Company, no more restrictive, taken as a whole, than those in effect on the date of the acquisition; provided further, that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be incurredIncurred; and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements or instruments; provided that the amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are not materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions, than those contained in those agreements governing such Indebtedness or Capital Stock, as determined by the Company in its reasonable and good faith judgment;
(6) any agreement or instrument relating to property or assets acquired after the Issue Date, so long as such encumbrance or restriction relates only to the property or assets so acquired and is not and was not created in in anticipation of such acquisition and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements or instruments; provided that the amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are not materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements or instruments, as determined by the Company in its reasonable and good faith judgment;
(7) customary non-assignment provisions in Hydrocarbon purchase and sale or exchange agreements or similar operational agreements or in licensescontracts, easements or leases, in each case, licenses and other agreements entered into in the ordinary course of business;
(7) 8) purchase money obligations for property acquired in the ordinary course of business and Capital Lease Obligations permitted under this Indenture, in each case, that impose restrictions on the property purchased or leased of the nature described in clause (3) of Section 4.08(a4.12(a); and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of agreements governing such purchase money obligations or Capital Lease Obligations; provided that the amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are not materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in agreements governing such purchase money obligations or Capital Lease Obligations, as determined by the Company in its reasonable and good faith judgment;
(8) 9) any agreement for the sale or other disposition of Capital Stock or assets of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its such sale or other disposition;
(910) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness arecase of clause (3) of Section 4.12(a), in the reasonable good faith judgment of an Officer of the Company, not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(10) Liens permitted to be incurred under the provisions of Incurred pursuant to Section 4.12 4.10, that limit the right of the debtor to dispose of the assets subject to such Liens;
(11) provisions limiting the disposition or distribution of assets or property in joint venture agreements, partnership agreements, limited liability company agreements, asset sale agreements, sale-sale and leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment) entered (i) in the ordinary course of business or (ii) into with the approval of the Company’s Board of Directors, which limitation is applicable only to the assets that are the subject of such agreements;
(12) encumbrances or restrictions applicable only to a Restricted Subsidiary that is not a Domestic Subsidiary;
(13) encumbrances or restrictions on cash or other deposits or net worth imposed by customers or lessors required by insurance, surety or bonding companies, in each case, under contracts or leases entered into in the ordinary course of business;
(14) customary encumbrances and restrictions contained in agreements of the types described in the definition of Permitted Business Investments;
(15) agreements governing Hedging Obligations incurred in the ordinary course of business; and
(1613) any encumbrance encumbrances or restriction restrictions with respect to an Unrestricted Subsidiary pursuant to property under a charter, lease or by reason of an other agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not has been entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance ordinary course for the employment, charter or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property hire of such Unrestricted Subsidiary. In each case set forth above, notwithstanding any stated limitation on the assets or property that may be subject to such encumbrance or restriction, an encumbrance or restriction on a specified asset or property or group or type of assets or property may also apply to all improvements, additions, repairs, attachments or accessions thereto, assets and property affixed or appurtenant thereto, parts, replacements and substitutions therefor, and all products and proceeds thereof, including dividends, distributions, interest and increases in respect thereofproperty.
Appears in 1 contract
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company will Borrower shall not, and will shall not permit any of its Restricted Subsidiaries that is not a Guarantor to, directly or indirectly, create or permit otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary of the Borrower that is not a Guarantor to:
(1i) (x) pay dividends or make any other distributions on its Capital Stock to the Company Borrower or any of its Restricted Subsidiaries, Subsidiaries (1) on its Capital Stock or (2) with respect to any other interest or participation in, or measured by, its profits, or (y) pay any Indebtedness owed to the Company Borrower or any of its Restricted Subsidiaries, provided that the priority of any preferred stock in receiving dividends or liquidating distributions prior to the payment of dividends or liquidating distributions on common stock shall not be deemed to be a restriction on the ability to make distributions on Capital Stock;
(ii) make loans or advances to the Borrower or any of its Restricted Subsidiaries; provided that the priority that any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends, distributions or liquidating distributions before dividends, distributions or liquidating distributions are paid in respect of common stock of such Restricted Subsidiary shall not constitute a restriction on the ability to make dividends or distributions on Capital Stock for purposes of this Section 4.08;
(2) make loans or advances to the Company or any of its Restricted Subsidiaries (it being understood that the subordination of loans or advances made to the Company or any of its Restricted Subsidiaries to other Indebtedness incurred by the Company or any of its Restricted Subsidiaries shall not be deemed a restriction on the ability to make loans or advances); or
(3iii) sell, lease or transfer any of its properties or assets to the Company Borrower or any of its Restricted Subsidiaries.
(b) The . However, the preceding restrictions in Section 4.08(a) hereof will shall not apply to encumbrances or restrictions existing under or by reason of:
(1a) agreements governing Existing Indebtedness and the Credit Agreement as in effect on the date of this Indenture September 27, 2012 and any amendments, modifications, restatements, modificationsrenewals, renewalsincreases, supplements, refundings, replacements or refinancings (collectively, for the purposes of those agreements; this Section 8.2, “amendments”) of any such agreements or any Indebtedness outstanding on September 27, 2012 to which such agreements relate, provided that the encumbrances or restrictions contained in the amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings such amendments are not in the good faith judgment of an Officer of the Company materially more restrictive, taken as a whole, with respect to such dividend dividend, distribution and other payment restrictions than those contained in those agreements such agreement, as in effect on the date of this IndentureSeptember 27, 2012, as determined by the Borrower;
(2b) this Indenture, any Credit Facility in effect after the Notes and Effective Date to the Note Guarantees;
(3) agreements governing other Indebtedness permitted to be incurred under the extent its provisions of Section 4.09 hereof and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained therein are in the reasonable good faith judgment of an Officer of the Company, either (a) not materially more restrictive, taken as a whole, with respect to such dividend, distribution or other payment restrictions and loan or investment restrictions than those contained in any Credit Facility as in effect on the Effective Date, as determined by the Borrower;
(c) this Agreement, the Loans, the Guarantees or any indenture governing debt securities issued by the Borrower or any Guarantor that are not materially more restrictive, taken as a whole, with respect to such dividend, distribution or other payment restrictions and other loan or investment restrictions than those contained in this Indenture, the Notes Agreement and the Note Guarantees or Guarantees, as determined by the Credit Agreement as in effect on the date of this Indenture or (b) not reasonably likely to have a material adverse effect on the ability of the Company to make required payments on the NotesBorrower;
(4d) any future Liens that may be permitted to be granted under, or incurred not in violation of, any other provisions hereof;
(e) applicable law, rule, regulation or order;
(5f) any instrument governing Indebtedness or Capital Stock Stock, or any other agreement relating to any property or assets, of a Person acquired by or merged or consolidated with or into the Company Borrower or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to or at the extent such Indebtedness or Capital Stock was incurred in connection time it merges with or in contemplation of such acquisition)into the Borrower or any Restricted Subsidiary, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person or such Person’s subsidiaries, so acquired, acquired and any amendments, modifications, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings thereof; provided, provided that the encumbrances and restrictions in any such amendments, modifications, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements replacement or refinancings are, in the reasonable good faith judgment of an Officer of the Company, no are not materially more restrictive, restrictive taken as a whole, whole than those in effect on the date of the acquisition; provided further, that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be incurred;
(6g) restrictions of the nature described in clause (iii) above by reason of customary non-assignment provisions in Hydrocarbon purchase and sale or exchange agreements or similar operational agreements or in contracts, agreements, licenses, easements or leases, in each case, leases and conveyances entered into in the ordinary course of business;
(7h) purchase money obligations for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on the property purchased or leased of the nature described in clause (3iii) of Section 4.08(a)above on the property acquired or leased;
(8) i) customary provisions in bona fide contracts for the sale of property or assets that restricts the sale or disposition of such property or assets pending such sale;
(j) any agreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(9k) agreements relating to secured Indebtedness otherwise permitted to be incurred pursuant to Section 8.3 hereof, and not in violation of Section 8.6 hereof, that limit the right of the debtor to dispose of assets subject to such Liens;
(l) Permitted Refinancing Indebtedness; , provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, in the reasonable good faith judgment of an Officer of the Company, are not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced, as determined by the Borrower;
(10) Liens permitted to be incurred under the provisions of Section 4.12 that limit the right of the debtor to dispose of the assets subject to such Liens;
(11m) provisions limiting with respect to the disposition or distribution of assets or property in partnership agreements, limited liability company organizational governance documents, joint venture agreements, asset sale agreements, sale-leaseback agreementsagreements relating to Sale and Leaseback Transactions, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment) entered into with the approval ordinary course of the Company’s Board of Directors, which limitation is applicable only to the assets that are the subject of such agreementsbusiness;
(12n) other Indebtedness, Disqualified Equity or preferred stock permitted to be incurred subsequent to the Effective Date pursuant to Section 8.3 hereof, provided that the encumbrances and restrictions contained therein shall not materially impair the Borrower’s ability to make payments under the Loans when due, as determined in good faith by the Borrower;
(o) encumbrances or restrictions applicable only contained in, or in respect of, Hedging Obligations permitted under this Agreement from time to a Restricted Subsidiary that is not a Domestic Subsidiary;time; and
(13p) encumbrances or restrictions on cash or other deposits or net worth imposed by customers or lessors under contracts or leases entered into in the ordinary course of business;
(14) customary encumbrances and restrictions contained in agreements of the types described in the definition of Permitted Business Investments;
(15) agreements governing Hedging Obligations incurred in the ordinary course of business; and
(16) any encumbrance or restriction with respect to an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Unrestricted Subsidiary. In each case set forth above, notwithstanding any stated limitation on the assets or property that may be subject to such encumbrance or restriction, an encumbrance or restriction on a specified asset or property or group or type of assets or property may also apply to all improvements, additions, repairs, attachments or accessions thereto, assets and property affixed or appurtenant thereto, parts, replacements and substitutions therefor, and all products and proceeds thereof, including dividends, distributions, interest and increases in respect thereof.
Appears in 1 contract
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock to the Company or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness indebtedness owed to the Company or any of its Restricted Subsidiaries; provided that the priority that any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends, distributions or liquidating distributions before dividends, distributions or liquidating distributions are paid in respect of common stock of such Restricted Subsidiary shall not constitute a restriction on the ability to make dividends or distributions on Capital Stock for purposes of this Section 4.08;
(2) make loans or advances to the Company or any of its Restricted Subsidiaries (it being understood that the subordination of loans or advances made to the Company or any of its Restricted Subsidiaries to other Indebtedness incurred by the Company or any of its Restricted Subsidiaries shall not be deemed a restriction on the ability to make loans or advances)Subsidiaries; or
(3) sell, lease or transfer any of its properties or assets to the Company or any of its Restricted Subsidiaries.
(b) The restrictions in Section 4.08(a) hereof will not apply to encumbrances or restrictions existing under or by reason of:
(1) agreements governing Existing Indebtedness and the Credit Agreement Facilities as in effect on the date of this Indenture and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained in the amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings which, in the reasonable judgment of the Company, are not in the good faith judgment of an Officer of the Company materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements on the date of this Indenture;
(2) this Indenture, the Notes and the Note Guarantees;
(3) agreements governing other Indebtedness permitted to be incurred under the provisions of Section 4.09 hereof and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained therein are in the reasonable good faith judgment of an Officer of the Company, either (a) not materially more restrictive, taken as a whole, than those contained in this Indenture, the Notes and the Note Guarantees or the Credit Agreement as in effect on the date of this Indenture or (b) not reasonably likely to have a material adverse effect on the ability of the Company to make required payments on the NotesGuarantees;
(4) applicable law, rule, regulation or order;
(5) any instrument governing Indebtedness or Capital Stock of a Person acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness or Capital Stock was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, and any amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings thereof; provided, that the encumbrances and restrictions in any such amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings are, in the reasonable good faith judgment of an Officer of the Company, no more restrictive, taken as a whole, than those in effect on the date of the acquisition; provided further, that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be incurred;
(6) customary non-assignment provisions in Hydrocarbon purchase contracts and sale or exchange agreements or similar operational agreements or in licenses, easements or leases, in each case, licenses entered into in the ordinary course of business;
(7) purchase money obligations for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on the property purchased or leased of the nature described in clause (3) of Section 4.08(a)) hereof;
(8) any agreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(9) Permitted Refinancing Indebtedness; provided that in the reasonable judgment of the Company the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, in the reasonable good faith judgment of an Officer of the Company, are not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(10) Liens permitted to be incurred under the provisions of Section 4.12 that limit the right of the debtor to dispose of the assets subject to such Liens;
(11) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment) entered into with the approval of the Company’s Board of Directors, which limitation is applicable only to the assets that are the subject of such agreements;
(1211) encumbrances or restrictions applicable only to a Restricted Subsidiary that is not a Domestic Subsidiary;
(13) encumbrances or restrictions on cash or other deposits or net worth imposed by customers or lessors under contracts or leases entered into in the ordinary course of business;
(1412) customary encumbrances and restrictions contained in agreements of the types described in the definition case of Permitted Business Investments;
clause (153) agreements governing Hedging Obligations incurred of Section 4.08(a), arising or agreed to in the ordinary course of business; and
(16) any encumbrance or restriction with respect to an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was , not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets or property of the Company or any other of its Restricted Subsidiary other than Subsidiaries in any manner material to the assets Company and property its Restricted Subsidiaries taken as a whole;
(13) the terms of any Indebtedness or any agreement pursuant to which such Unrestricted Subsidiary. In each case set forth above, notwithstanding any stated limitation on Indebtedness was issued if: (i) the assets or property that may be subject to such encumbrance or restrictionrestriction applies only to amounts that are earmarked for operating and/or capital expenditures and/or debt service, or in the event of a default contained in such Indebtedness or agreement, (ii) the encumbrance or restriction is not materially less favorable, taken as a whole, to the Holders than is customary in comparable financings (as determined by the reasonable judgment of the Company), and (iii) the Company, in its reasonable judgment, determines that such an encumbrance or restriction will not materially affect the Company’s ability to make principal or interest payments on a specified asset the Notes; and
(14) limitations on loans and advances to affiliates contained in organizational documents of an SPE Borrower or the terms of Indebtedness or any agreement pursuant to which such Indebtedness was incurred that are customary in secured financings of an SPE Borrower. Nothing contained in this Section 4.08 shall prevent the Company or any of its Restricted Subsidiaries from restricting the sale or other disposition of property or group assets of the Company or type any of assets its Restricted Subsidiaries that secure Indebtedness of the Company or property may also apply to all improvements, additions, repairs, attachments or accessions thereto, assets and property affixed or appurtenant thereto, parts, replacements and substitutions therefor, and all products and proceeds thereof, including dividends, distributions, interest and increases in respect thereofany of its Restricted Subsidiaries.
Appears in 1 contract
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company Parent will not, and will not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1i) pay dividends or make any other distributions on its Capital Stock to the Company Parent or any of its Restricted SubsidiariesSubsidiary, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Company Parent or any of its Restricted Subsidiaries; provided that the priority that any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends, distributions or liquidating distributions before dividends, distributions or liquidating distributions are paid in respect of common stock of such Restricted Subsidiary shall not constitute a restriction on the ability to make dividends or distributions on Capital Stock for purposes of this Section 4.08Subsidiary;
(2ii) make loans or advances to the Company Parent or any of its Restricted Subsidiaries (it being understood that the subordination of loans or advances made to the Company or any of its Restricted Subsidiaries to other Indebtedness incurred by the Company or any of its Restricted Subsidiaries shall not be deemed a restriction on the ability to make loans or advances)Subsidiary; or
(3iii) sell, lease or transfer any of its properties or assets to the Company Parent or any Restricted Subsidiary, provided that (x) the priority of its any preferred stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill period to) loans or advances made to the Parent or any Restricted SubsidiariesSubsidiary to other Indebtedness incurred by the Parent or any Restricted Subsidiary, shall not be deemed to constitute such an encumbrance or restriction.
(b) The However, the preceding restrictions in Section 4.08(a) hereof will not apply to encumbrances or restrictions existing under or by reason of:
(1i) agreements governing Existing Indebtedness and the Credit Agreement Facilities as in effect on the date of this Indenture Issue Date and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained in the amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are not in the good faith judgment of an Officer of the Company materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements on the date of this IndentureIssue Date;
(2ii) this Indenture, the Notes and the Note Guarantees, the 2019 Indenture, the 2019 Notes and the 2019 Note Guarantees, the New OeKB Facility, the 2014 Indenture, the 2014 Notes the 2014 Note Guarantees, the 2018 Indenture, the 2018 Notes and the 2018 Note Guarantees, the 2021 Indenture, the 2021 Notes and the 2021 Note Guarantees, the Revolving Credit Facility, the Bank Austria Facility, the Intercreditor Agreement and the Collateral Documents;
(3iii) agreements governing other Indebtedness permitted to be incurred under the provisions of Section 4.09 hereof and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the restrictions therein are not materially less favorable to the holders of the Notes than is customary in comparable financings (as determined in good faith by the Parent) or the Parent determines at the time of the incurrence of such Indebtedness that such encumbrances or restrictions contained therein are will not adversely affect, in the reasonable good faith judgment of an Officer of the Company, either (a) not materially more restrictive, taken as a whole, than those contained in this Indentureany material respect, the Notes and the Note Guarantees or the Credit Agreement as in effect on the date of this Indenture or (b) not reasonably likely to have a material adverse effect on the Issuer’s ability of the Company to make required principal or interest payments on the Notes;
(4iv) applicable law, rule, regulation or orderorder or the terms of any license, authorization, concession or permit;
(5v) any instrument governing Indebtedness or Capital Stock of a Person acquired by the Company Parent or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness or Capital Stock was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, and any amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings thereof; provided, that the encumbrances and restrictions in any such amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings are, in the reasonable good faith judgment of an Officer of the Company, no more restrictive, taken as a whole, than those in effect on the date of the acquisition; provided further, that, in the case of Indebtedness, such Indebtedness was permitted to be incurred by the terms of this Indenture to be incurredIndenture;
(6vi) customary non-assignment and similar provisions in Hydrocarbon purchase contracts, leases and sale or exchange agreements or similar operational agreements or in licenses, easements or leases, in each case, licenses entered into in the ordinary course of business;
(7vii) purchase money obligations for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on the property purchased or leased of the nature described in clause (3) of Section 4.08(a4.08(a)(iii);
(8) viii) any agreement for the sale or other disposition of the Capital Stock or all or substantially all of the property and assets of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(9ix) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, in the reasonable good faith judgment of an Officer of the Company, are not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(10x) Liens permitted to be incurred under the provisions of Section 4.12 that limit the right of the debtor to dispose of the assets subject to such Liens;
(11xi) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment) entered into with the approval of the Company’s Board of Directors), which limitation is applicable only to the assets that are the subject of such agreements;
(12xii) encumbrances or restrictions applicable only to a Restricted Subsidiary that is not a Domestic Subsidiary;
(13) encumbrances or restrictions on cash or other deposits or net worth imposed by customers or lessors suppliers or required by insurance, surety or bonding companies or imposed by leases, in each case, under contracts or leases entered into in the ordinary course of business;
(14) customary encumbrances and restrictions contained in agreements of the types described in the definition of Permitted Business Investments;
(15) agreements governing Hedging Obligations incurred in the ordinary course of business; and
(16xiii) any encumbrance or restriction of a Securitization Subsidiary effected in connection with respect a Qualified Securitization Financing; provided, however, that such restrictions apply only to an Unrestricted Subsidiary pursuant to or by reason of an such Securitization Subsidiary;
(xiv) Hedging Obligations; and
(xv) any agreement that extends, renews, refinances or replaces the Unrestricted Subsidiary is a party to agreements containing the encumbrances or entered into before restrictions in the date on which such Unrestricted Subsidiary became a Restricted Subsidiaryforegoing Section 4.08(b)(i)—(xiv), or in this clause (xv); provided that such agreement was not entered into in anticipation the terms and conditions of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance encumbrances or restriction does not extend restrictions are no more restrictive in any material respect than those under or pursuant to any assets the agreement so extended, renewed, refinanced or property of the Company or any other Restricted Subsidiary other than the assets and property of such Unrestricted Subsidiary. In each case set forth above, notwithstanding any stated limitation on the assets or property that may be subject to such encumbrance or restriction, an encumbrance or restriction on a specified asset or property or group or type of assets or property may also apply to all improvements, additions, repairs, attachments or accessions thereto, assets and property affixed or appurtenant thereto, parts, replacements and substitutions therefor, and all products and proceeds thereof, including dividends, distributions, interest and increases in respect thereofreplaced.
Appears in 1 contract
Sources: Indenture (Sappi LTD)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company Issuer will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock to the Company Issuer or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Company Issuer or any of its Restricted Subsidiaries; provided that (i) the priority that any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends, distributions dividends or liquidating distributions before dividends, distributions dividends or liquidating distributions are paid in respect of common stock of such Restricted Subsidiary shall not constitute a restriction on the ability to pay or make dividends or distributions on Capital Stock for purposes of this Section 4.084.08 and (ii) the subordination of Indebtedness owed to the Issuer or any Restricted Subsidiary to other Indebtedness incurred by any Restricted Subsidiary shall not be deemed a restriction on the ability to pay Indebtedness;
(2) make loans or advances to the Company Issuer or any of its Restricted Subsidiaries (it being understood that the subordination of loans or advances made to the Company Issuer or any of its Restricted Subsidiaries Subsidiary to other Indebtedness incurred by the Company Issuer or any of its Restricted Subsidiaries Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its properties or assets to the Company Issuer or any of its Restricted Subsidiaries.
(b) The restrictions in Section 4.08(a) hereof will not apply to encumbrances or restrictions existing under or by reason of:
(1) agreements governing Existing Indebtedness and the Credit Agreement as in effect on the date of this Indenture and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained in the amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are not in the good faith judgment of an Officer of the Company materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements on the date of this Indenture, as determined in good faith by the Issuer;
(2) this Indenture, the Notes and the Note Guarantees;
(3) agreements governing other Indebtedness permitted to be incurred under the provisions of Section 4.09 hereof and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained therein are in the reasonable good faith judgment of an Officer of the Company, either (a) not materially more restrictive, taken as a whole, than those contained in this Indenture, the Notes and the Note Guarantees or the Credit Agreement as in effect on the date of this Indenture or (b) not reasonably likely to have a material adverse effect on Indenture, as determined in good faith by the ability of the Company to make required payments on the NotesIssuer;
(4) applicable law, rule, regulation regulation, order, approval, license, permit or ordersimilar restriction;
(5) any instrument governing Indebtedness or Capital Stock or other agreement of a Person acquired (including by merger or consolidation), or the assets of which are acquired, by the Company Issuer or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness or Capital Stock or other agreement was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, and any amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings thereof; provided, that the encumbrances and restrictions in any such amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings are, in the reasonable good faith judgment of an Officer of the Company, no more restrictive, taken as a whole, than those in effect on the date of the acquisition; provided further, that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be incurred;
(6) customary non-assignment provisions in Hydrocarbon purchase and sale or exchange agreements or similar operational agreements or in licenses, easements or leases, in each case, entered into in the ordinary course of business;
(7) purchase money obligations for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on the property purchased or leased of the nature described in clause (3) of Section 4.08(a);
(8) any agreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(9) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, in the reasonable good faith judgment of an Officer of the Company, are not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced, as determined in good faith by the Issuer;
(10) Liens permitted to be incurred under the provisions of Section 4.12 that limit the right of the debtor to dispose of the assets subject to such Liens;
(11) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements, shareholders’ agreements, partnership agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment) entered into with the approval of the Company’s Board of DirectorsDirectors of the Issuer or in the ordinary course of business, which limitation is applicable only to the assets or property that are is the subject of such agreements;
(12) encumbrances any agreement or restrictions applicable instrument relating to any property or assets acquired after the date of this Indenture, so long as such encumbrance or restriction relates only to a Restricted Subsidiary that the property or assets so acquired and is not a Domestic Subsidiaryand was not created in anticipation of such acquisition;
(13) encumbrances or restrictions on cash cash, Cash Equivalents or other deposits or net worth requirements imposed by customers or lessors under contracts or leases entered into in the ordinary course of business;
(14) customary any Preferred Stock issued by a Restricted Subsidiary of the Issuer; provided that issuance of such Preferred Stock is permitted pursuant to Section 4.09 hereof and the terms of such Preferred Stock do not expressly restrict the ability of a Restricted Subsidiary of the Issuer to pay dividends or make any other distributions on its Equity Interests (other than requirements to pay dividends or liquidation preferences on such Preferred Stock prior to paying any dividends or making any other distributions on such other Equity Interests);
(15) in the case of any Foreign Subsidiary, any encumbrance or restriction contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was incurred if either (a) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant in such Indebtedness or agreement or (b) any such encumbrance or restriction will not materially affect the Issuer’s ability to make principal or interest payments on the Notes, as determined in good faith by the Issuer;
(16) Oil and Gas Hedging Contracts or Interest Rate Agreements permitted from time to time under this Indenture;
(17) encumbrances and restrictions contained in agreements of the types described in the definition of Permitted Business Investments;
(15) agreements governing Hedging Obligations incurred contracts entered into in the ordinary course of business; and
(16) , not relating to any encumbrance Indebtedness, and that do not, taken as a whole, detract from the value of, or restriction with respect from the ability of the Issuer and its Restricted Subsidiaries to an Unrestricted realize the value of, property or assets of the Issuer or any Restricted Subsidiary pursuant in any manner material to the Issuer or by reason of an agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became a any Restricted Subsidiary, as determined in good faith by the Issuer; provided that such agreement was encumbrances or restrictions will not entered into in anticipation of materially affect the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance Issuer’s ability to make principal or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Unrestricted Subsidiary. In each case set forth above, notwithstanding any stated limitation interest payments on the assets or property that may be subject to such encumbrance or restrictionNotes, an encumbrance or restriction on a specified asset or property or group or type of assets or property may also apply to all improvements, additions, repairs, attachments or accessions thereto, assets and property affixed or appurtenant thereto, parts, replacements and substitutions therefor, and all products and proceeds thereof, including dividends, distributions, interest and increases as determined in respect thereofgood faith by the Issuer; or
(18) any Permitted Investment.
Appears in 1 contract
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create Create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1a) pay dividends or make any other distributions distribution on its Capital Stock to the Company Playboy or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Company Playboy or any of its Restricted Subsidiaries;
(b) make loans or advances to Playboy or any of its Restricted Subsidiaries; provided that the priority that any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends, distributions or liquidating distributions before dividends, distributions or liquidating distributions are paid in respect of common stock of such Restricted Subsidiary shall not constitute a restriction on the ability to make dividends or distributions on Capital Stock for purposes of this Section 4.08;
(2) make loans or advances to the Company or any of its Restricted Subsidiaries (it being understood that the subordination of loans or advances made to the Company or any of its Restricted Subsidiaries to other Indebtedness incurred by the Company or any of its Restricted Subsidiaries shall not be deemed a restriction on the ability to make loans or advances); or
(3c) sell, lease or transfer any of its properties or assets to the Company Playboy or any of its Restricted Subsidiaries.
(b) The . However, the preceding restrictions in Section 4.08(a) hereof will not apply to encumbrances or restrictions existing under or by reason of:
(1i) this Agreement;
(ii) Indebtedness existing on the date hereof or other agreements governing Existing Indebtedness and the Credit Agreement as in effect on the date of this Indenture hereof and any amendments, modifications, restatements, modificationsrenewals, renewalsincreases, supplements, refundings, replacements or refinancings of those agreements; thereof, provided that the encumbrances or restrictions contained in the such amendments, modifications, restatements, modificationsrenewals, renewalsincreases, supplements, refundings, replacements replacement or refinancings are not in the good faith judgment of an Officer of the Company materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements on the date of this Indenture;
(2) this Indenture, the Notes and the Note Guarantees;
(3) agreements governing other Indebtedness permitted to be incurred under the provisions of Section 4.09 hereof and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained therein are in the reasonable good faith judgment of an Officer of the Company, either (a) not materially more restrictive, taken as a whole, than those contained in this Indenturesuch existing Indebtedness or other agreements, the Notes and the Note Guarantees or the Credit Agreement as applicable, as in effect on the date of this Indenture or (b) not reasonably likely to have a material adverse effect on the ability of the Company to make required payments on the Noteshereof;
(4iii) applicable law, rule, regulation or orderLaws;
(5iv) any instrument governing Indebtedness or Capital Stock of a Person acquired by the Company Playboy or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness or Capital Stock was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, and any amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings thereof; provided, that the encumbrances and restrictions in any such amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings are, in the reasonable good faith judgment of an Officer of the Company, no more restrictive, taken as a whole, than those in effect on the date of the acquisition; provided further, that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture Agreement to be incurred;
(6v) customary non-assignment provisions in Hydrocarbon purchase and sale or exchange agreements or similar operational agreements or in licenses, easements or leases, in each case, leases entered into in the ordinary course of businessbusiness and consistent with past practices;
(7vi) purchase money obligations otherwise permitted hereunder for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on the property purchased or leased of the nature described in clause (3) of Section 4.08(a)so acquired;
(8) vii) any agreement for the sale or other disposition of all or substantially all of the Capital Stock or assets of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(9viii) Permitted Refinancing Indebtedness; refinancing Indebtedness described in Section 7.03(j), provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, in the reasonable good faith judgment of an Officer of the Company, are not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(10ix) Liens permitted any instrument governing Indebtedness of Foreign Subsidiaries incurred pursuant to be incurred under the provisions of Section 4.12 that limit the right of the debtor to dispose of the assets subject to such Liens7.03(i);
(11x) provisions limiting with respect to the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment) entered into with the approval ordinary course of the Company’s Board of Directors, which limitation is applicable only to the assets that are the subject of such agreementsbusiness;
(12xi) encumbrances or restrictions applicable only to a Restricted Subsidiary that is not a Domestic Subsidiary;
(13) encumbrances or restrictions on cash or other deposits or net worth imposed by customers or lessors under contracts or leases entered into in the ordinary course of business;
(14xii) customary encumbrances and restrictions contained in agreements Liens permitted hereunder securing Indebtedness that limit the right of the types described in debtor to dispose of the definition of Permitted Business Investments;
(15) agreements governing Hedging Obligations incurred in the ordinary course of businessassets subject to such Lien; and
(16xiii) customary restrictions and conditions contained in any encumbrance or restriction with respect agreement relating to an Unrestricted Subsidiary pursuant to or the sale of property permitted by reason of an agreement that Section 7.05 pending the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property consummation of such Unrestricted Subsidiary. In each case set forth above, notwithstanding any stated limitation on the assets or property that may be subject to such encumbrance or restriction, an encumbrance or restriction on a specified asset or property or group or type of assets or property may also apply to all improvements, additions, repairs, attachments or accessions thereto, assets and property affixed or appurtenant thereto, parts, replacements and substitutions therefor, and all products and proceeds thereof, including dividends, distributions, interest and increases in respect thereofsale.
Appears in 1 contract
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company will Iron Mountain shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create or permit otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) (i) pay dividends or make any other distributions to Iron Mountain or any Restricted Subsidiary (A) on its Capital Stock to the Company or any of its Restricted Subsidiaries, or (B) with respect to any other interest or participation in, or measured by, its profits, or (ii) pay any Indebtedness owed to the Company Iron Mountain or any of its Restricted Subsidiaries; provided that the priority that any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends, distributions or liquidating distributions before dividends, distributions or liquidating distributions are paid in respect of common stock of such Restricted Subsidiary shall not constitute a restriction on the ability to make dividends or distributions on Capital Stock for purposes of this Section 4.08Subsidiary;
(2) make loans or advances to the Company Iron Mountain or any of its Restricted Subsidiaries (it being understood that the subordination of loans or advances made to the Company or any of its Restricted Subsidiaries to other Indebtedness incurred by the Company or any of its Restricted Subsidiaries shall not be deemed a restriction on the ability to make loans or advances)Subsidiary; or
(3) sell, lease or transfer any of its properties or assets to the Company Iron Mountain or any of its Restricted Subsidiaries.
(b) The Subsidiary. However, the preceding restrictions in Section 4.08(a) hereof will not apply to encumbrances or restrictions existing under or by reason of:
(1) agreements governing Existing Indebtedness and the Credit Agreement as in effect on as of the date of this Indenture hereof, and any amendments, modifications, restatements, modificationsrenewals, renewalsincreases, supplements, refundings, replacements or refinancings of those agreementsthereof; provided that the encumbrances or restrictions contained in the such amendments, modifications, restatements, modificationsrenewals, renewalsincreases, supplements, refundings, replacements or refinancings are not no more restrictive in the good faith judgment of an Officer of the Company materially more restrictive, taken as a whole, aggregate with respect to such dividend and other payment restrictions than those contained in those the agreements governing Existing Indebtedness as in effect on the date of this Indenturehereof;
(2) this Indenturethe Credit Agreement as in effect as of the date hereof, the Notes and the Note Guarantees;
(3) agreements governing other Indebtedness permitted to be incurred under the provisions of Section 4.09 hereof and any amendments, modifications, restatements, modificationsrenewals, renewalsincreases, supplements, refundings, replacements or refinancings of those agreementsthereof; provided that the encumbrances such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or restrictions contained therein refinancings are no more restrictive in the reasonable good faith judgment of an Officer of the Company, either (a) not materially more restrictive, taken as a whole, aggregate with respect to such dividend and other payment restrictions than those contained in this Indenture, the Notes and the Note Guarantees or the Credit Agreement as in effect on the date of hereof;
(3) this Indenture or (b) not reasonably likely to have a material adverse effect on the ability of the Company to make required payments on and the Notes;
(4) applicable law, including, for the avoidance of doubt, any applicable rule, regulation or order;
(5) any instrument governing Indebtedness or Capital Stock of a Person acquired by the Company Iron Mountain or any of its Restricted Subsidiaries Subsidiary as in effect at the time of such acquisition (except to the extent such Indebtedness or Capital Stock was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, and any amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings thereof; provided, that the encumbrances and restrictions in any such amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings are, in the reasonable good faith judgment of an Officer of the Company, no more restrictive, taken as a whole, than those in effect on the date of the acquisition; provided further, that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be incurred;
(6) customary non-assignment provisions in Hydrocarbon purchase and sale contracts, licenses or exchange agreements or similar operational agreements or in licenses, easements or leases, in each case, leases entered into in the ordinary course of businessbusiness and consistent with past practices;
(7) purchase money obligations for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on the property purchased or leased of the nature described in clause (3) of Section 4.08(a);
(8) any agreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(8) restrictions on the transfer of property subject to mortgages, purchase money obligations or Financing Lease Obligations otherwise permitted by clause (5) of Section 4.10;
(9) Permitted permitted Refinancing Indebtedness; , provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, are no more restrictive in the reasonable good faith judgment of an Officer of the Company, not materially more restrictive, taken as a whole, aggregate than those contained in the agreements governing the Indebtedness being refinanced;
(10) Liens permitted to be incurred under the provisions of Section 4.12 4.11 that limit the right of the debtor to dispose of the assets subject to such Liens;
(11) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Permitted Investment) entered into with the approval of the CompanyIron Mountain’s Board of Directors, which limitation is applicable only to the assets that are the subject of such agreements;
(12) encumbrances or restrictions applicable only to a Restricted Subsidiary that is not a Domestic Subsidiary;
(13) encumbrances or restrictions on cash or other deposits or net worth imposed by customers or lessors under contracts or leases entered into in the ordinary course of business;
(14) customary encumbrances and restrictions contained in agreements of the types described in the definition of Permitted Business Investments;
(1513) agreements governing Hedging Obligations other Indebtedness permitted to be incurred under the provisions of Section 4.10 and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the restrictions therein will not materially affect Iron Mountain’s ability to make anticipated principal or interest payments on the Notes (as determined in good faith by senior management or the ordinary course Board of businessDirectors of Iron Mountain); and
(1614) any encumbrance or restriction with respect to an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Unrestricted Subsidiary. In each case set forth above, notwithstanding any stated limitation on the assets or property that may be subject to such encumbrance or restriction, an encumbrance Lien or restriction on a specified asset Securitization Subsidiary that, in the good faith judgment of senior management or property or group or type the Board of assets or property may also Directors of Iron Mountain, is reasonably required in connection therewith; provided, however, that such restrictions only apply to all improvements, additions, repairs, attachments or accessions thereto, assets and property affixed or appurtenant thereto, parts, replacements and substitutions therefor, and all products and proceeds thereof, including dividends, distributions, interest and increases in respect thereofSecuritization Subsidiaries.
Appears in 1 contract
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock to the Company or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness indebtedness owed to the Company or any of its Restricted Subsidiaries; provided Subsidiaries (it being understood that the priority that of any series of Preferred Stock of a Restricted Subsidiary has preferred stock in receiving dividends, distributions dividends or liquidating distributions before dividends, distributions prior to dividends or liquidating distributions are being paid in respect of on common stock of such Restricted Subsidiary shall not constitute be deemed a restriction on the ability to make dividends or distributions on Capital Stock for purposes of this Section 4.08Stock);
(2) make loans or advances to the Company or any of its Restricted Subsidiaries (it being understood that the subordination of loans or advances made to the Company or any of its Restricted Subsidiaries Subsidiary to other Indebtedness incurred by the Company or any of its Restricted Subsidiaries Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its properties or assets to the Company or any of its Restricted SubsidiariesSubsidiaries (it being understood that such transfers shall not include any type of transfer described in clauses (1) and (2) of this Section 4.08(a)).
(b) The restrictions in Section 4.08(a) hereof will not apply to encumbrances or restrictions existing under or by reason of:
(1) agreements governing Existing Indebtedness and the Credit Agreement Facilities as in effect on the date of this Indenture and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained in the amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are not refinancings, in the good faith judgment of an Officer of the Company Company, (x) are not materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements on the date of this IndentureIndenture and (y) will not materially affect the Company’s ability to make anticipated principal and interest payments on the Notes when due;
(2) this Indenture, the Notes and the Note Guarantees;
(3) agreements governing other Indebtedness permitted to be incurred under the provisions of Section 4.09 hereof and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained therein are in the reasonable good faith judgment of an Officer of the Company, either (a) such encumbrances and restrictions will not materially more restrictive, taken as a whole, than those contained in this Indenture, affect the Notes and the Note Guarantees or the Credit Agreement as in effect on the date of this Indenture or (b) not reasonably likely to have a material adverse effect on the Company’s ability of the Company to make required anticipated principal and interest payments on the NotesNotes when due;
(4) applicable law, rule, regulation or order;
(5) any instrument governing Indebtedness or Capital Stock of a Person acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness or Capital Stock was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, and any amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings thereof; provided, that the encumbrances and restrictions in any such amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings are, in the reasonable good faith judgment of an Officer of the Company, no more restrictive, taken as a whole, than those in effect on the date of the acquisition; provided further, that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be incurred;
(6) customary non-assignment provisions in Hydrocarbon purchase and sale or exchange agreements or similar operational agreements or in licenses, easements or leases, in each casesubleases, licenses and other contracts entered into in the ordinary course of business;
(7) purchase money obligations for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on the property purchased or leased of the nature described in clause (3) of Section 4.08(a)) hereof;
(8) any agreement for the sale or other disposition of all or a portion of the Capital Stock or assets of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(9) Permitted Refinancing Indebtedness; provided that that, in the good faith judgment of the Company, the encumbrances and restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, in the reasonable good faith judgment of an Officer of the Company, (x) are not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinancedrefinanced and (y) will not materially affect the Company’s ability to make anticipated principal and interest payments on the Notes when due;
(10) Liens permitted to be incurred under the provisions of Section 4.12 hereof that limit the right of the debtor to dispose of the assets subject to such Liens;
(11) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment) entered into with the approval of the Company’s Board of Directors), which limitation is applicable only to the assets that are the subject of such agreements;
(12) encumbrances or restrictions applicable only to a Restricted Subsidiary that is not a Domestic Subsidiary;
(13) encumbrances or restrictions on cash or other deposits or net worth imposed by customers or lessors under contracts or leases entered into in the ordinary course of business;
(1413) customary encumbrances and restrictions contained in agreements of the types described in the definition of Permitted Business Investments;
(15) agreements governing Hedging Obligations incurred reciprocal easements entered into in the ordinary course of business; and
(1614) any encumbrance encumbrances or restriction with respect to an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is restrictions arising from a party to or Deferred Revenue Financing Arrangement entered into before subsequent to the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; Issue Date and provided that such agreement was not entered into at the time of entering into, the Company in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any good faith believes that such encumbrance or restriction does shall not extend adversely affect the Company’s ability to any assets or property of the Company or any other Restricted Subsidiary other than the assets make principal and property of such Unrestricted Subsidiary. In each case set forth above, notwithstanding any stated limitation interest payments on the assets or property that may be subject to such encumbrance or restriction, an encumbrance or restriction on a specified asset or property or group or type of assets or property may also apply to all improvements, additions, repairs, attachments or accessions thereto, assets and property affixed or appurtenant thereto, parts, replacements and substitutions therefor, and all products and proceeds thereof, including dividends, distributions, interest and increases Notes in respect thereofany material respect.
Appears in 1 contract
Sources: Indenture (Coeur Mining, Inc.)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company and Parent will not, and will not permit any of its the Restricted Subsidiaries of Parent to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary of Parent to:
(1) pay dividends or make any other distributions on its Capital Stock to the Company Company, Parent or any of its the Restricted SubsidiariesSubsidiaries of Parent, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness indebtedness owed to the Company Company, Parent or any of its the Restricted Subsidiaries; provided Subsidiaries of Parent (it being understood that the priority that of any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends, distributions dividends or liquidating distributions before dividends, distributions prior to dividends or liquidating distributions are being paid in respect of on common stock of such Restricted Subsidiary shall not constitute be deemed a restriction on the ability to make dividends or distributions on Capital Stock for purposes of this Section 4.08Stock);
(2) make loans or advances to the Company Company, Parent or any of its the Restricted Subsidiaries of Parent (it being understood that the subordination of loans or advances made to the Company Company, Parent or any of its the Restricted Subsidiaries of Parent to other Indebtedness incurred by the Company Company, Parent or any of its the Restricted Subsidiaries of Parent shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its properties or assets to the Company Company, Parent or any of its the Restricted SubsidiariesSubsidiaries of Parent.
(b) The restrictions in Section 4.08(a3.04(a) hereof will not apply to encumbrances or restrictions existing under or by reason of:
(1) contractual encumbrances or restrictions (x) under the ABL Credit Facilities, or (y) in effect on the date of this Indenture, including agreements governing Existing Indebtedness and Debt Facilities (other than the ABL Credit Agreement Facilities) as in effect on the date of this Indenture and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreementsagreements described in this clause (y); provided that the encumbrances or restrictions contained in the such amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are not in the good faith judgment of an Officer of the Company Parent materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements on the date of this IndentureIndenture except to the extent that market conditions require more restrictive encumbrances and restrictions as reasonably determined by the Company;
(2) this Indenture, the Notes and Notes, the Note Guarantees, the Collateral Documents and the Intercreditor Agreements;
(3) agreements governing other Indebtedness permitted to be incurred under the provisions of Section 4.09 hereof and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained therein are in the reasonable good faith judgment of an Officer of the Company, either (a) not materially more restrictive, taken as a whole, than those contained in this Indenture, the Notes and the Note Guarantees or the Credit Agreement as in effect on the date of this Indenture or (b) not reasonably likely to have a material adverse effect on the ability of the Company to make required payments on the Notes;
(4) applicable law, rule, regulation regulation, approval, license, permit or order;
(54) any instrument governing Indebtedness or Capital Stock of a Person acquired by the Company Company, Parent or any of its the Restricted Subsidiaries of Parent as in effect at the time of such acquisition (except to the extent such Indebtedness or Capital Stock was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, and any amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings thereof; provided, that the encumbrances and restrictions in any such amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings are, in the reasonable good faith judgment of an Officer of the Company, no more restrictive, taken as a whole, than those in effect on the date of the acquisition; provided further, that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be incurred;
(65) customary non-assignment and similar provisions in Hydrocarbon purchase and sale contracts, leases or exchange agreements or similar operational agreements or in licenses, easements or leases, in each case, licenses entered into in the ordinary course of business;
(76) purchase money obligations for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on the property purchased or leased of the nature described in clause (3Section 3.04(a)(3) of Section 4.08(a)hereof;
(8) 7) any agreement for the sale or other disposition of a Restricted Subsidiary of Parent or all or substantially all of the assets of such Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its the sale or other disposition;
(9) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, in the reasonable good faith judgment of an Officer of the Company, not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(10) 8) Liens permitted to be incurred under the provisions of Section 4.12 3.06 and restrictions in the agreements relating thereto that limit the right of the debtor to dispose of the assets subject to such Liens;
(119) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment) entered into with the approval of the Company’s Board of Directors, which limitation is applicable only to the assets that are the subject of such agreements;
(12) encumbrances or restrictions applicable only to a Restricted Subsidiary that is not a Domestic Subsidiary;
(13) encumbrances or restrictions on cash or other deposits or net worth imposed by customers or lessors under contracts or leases entered into in the ordinary course of business;
(10) any encumbrance or restriction in connection with an acquisition of property, so long as such encumbrance or restriction relates solely to the property so acquired and was not created in connection with or in anticipation of such acquisition;
(11) provisions in agreements or instruments which prohibit the payment of dividends or the making of other distributions with respect to any class of Capital Stock of a Person other than on a pro rata basis;
(12) customary provisions in joint venture agreements and other similar agreements relating solely to such joint venture that limit the disposition or distribution of assets or property or restrict the transfer of ownership interests in such joint venture;
(13) restrictions on the sale or transfer of assets imposed under (x) any agreement to sell such assets or granting an option to purchase such assets entered into with the approval of Senior Management, (y) any stock sale agreement entered into with the approval of Senior Management or (z) any sale-leaseback agreement; provided that such sale, transfer or sale-leaseback complies with the other provisions of this Indenture;
(14) customary encumbrances and restrictions contained in agreements of the types described in the definition of Permitted Business InvestmentsIndebtedness permitted to be incurred under Section 3.02;
(15) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements governing Hedging Obligations incurred in of Parent, the ordinary course of businessCompany or any Restricted Subsidiary; and
(16) any encumbrance encumbrances or restriction with respect restrictions imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to an Unrestricted Subsidiary pursuant to in clauses (1) through (15) above or by reason of an agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiaryany Permitted Refinancing Indebtedness; provided that the encumbrances or restrictions in such agreement was not entered into amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are not, taken as a whole, materially more restrictive, in anticipation the good faith judgment of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property Board of the Company or any other Restricted Subsidiary other Directors of Parent, than the assets and property of such Unrestricted Subsidiary. In each case set forth above, notwithstanding any stated limitation on the assets encumbrances or property that may be subject restrictions prior to such encumbrance amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or restriction, an encumbrance or restriction on a specified asset or property or group or type of assets or property may also apply to all improvements, additions, repairs, attachments or accessions thereto, assets and property affixed or appurtenant thereto, parts, replacements and substitutions therefor, and all products and proceeds thereof, including dividends, distributions, interest and increases in respect thereofrefinancing.
Appears in 1 contract
Sources: Indenture (EM Holdings LLC)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock to the Company or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness indebtedness owed to the Company or any of its Restricted Subsidiaries; provided Subsidiaries (it being understood that the priority that of any series of Preferred Stock of a Restricted Subsidiary has preferred stock in receiving dividends, distributions dividends or liquidating distributions before dividends, distributions prior to dividends or liquidating distributions are being paid in respect of on common stock of such Restricted Subsidiary shall not constitute be deemed a restriction on the ability to make dividends or distributions on Capital Stock for purposes of this Section 4.08Stock);
(2) make loans or advances to the Company or any of its Restricted Subsidiaries (it being understood that the subordination of loans or advances made to the Company or any of its Restricted Subsidiaries Subsidiary to other Indebtedness incurred by the Company or any of its Restricted Subsidiaries Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its properties or assets to the Company or any of its Restricted SubsidiariesSubsidiaries (it being understood that such transfers shall not include any type of transfer described in clauses (1) and (2) of this Section 4.08(a)).
(b) The restrictions in Section 4.08(a) hereof will not apply to encumbrances or restrictions existing under or by reason of:
(1) agreements governing Existing Indebtedness and the Credit Agreement Facilities as in effect on the date of this Indenture and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained in the amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are not refinancings, in the good faith judgment of an Officer of the Company Company, (x) are not materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements on the date of this IndentureIndenture and (y) will not materially affect the Company’s ability to make anticipated principal and interest payments on the Notes when due;
(2) this Indenture, the Notes and the Note Guarantees;
(3) agreements governing other Indebtedness permitted to be incurred under the provisions of Section 4.09 hereof and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained therein are in the reasonable good faith judgment of an Officer of the Company, either (a) such encumbrances and restrictions will not materially more restrictive, taken as a whole, than those contained in this Indenture, affect the Notes and the Note Guarantees or the Credit Agreement as in effect on the date of this Indenture or (b) not reasonably likely to have a material adverse effect on the Company’s ability of the Company to make required anticipated principal and interest payments on the NotesNotes when due;
(4) applicable law, rule, regulation or order;
(5) any instrument governing Indebtedness or Capital Stock of a Person acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness or Capital Stock was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, and any amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings thereof; provided, that the encumbrances and restrictions in any such amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings are, in the reasonable good faith judgment of an Officer of the Company, no more restrictive, taken as a whole, than those in effect on the date of the acquisition; provided further, that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be incurred;
(6) customary non-assignment provisions in Hydrocarbon purchase and sale or exchange agreements or similar operational agreements or in licenses, easements or leases, in each casesubleases, licenses and other contracts entered into in the ordinary course of business;
(7) purchase money obligations for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on the property purchased or leased of the nature described in clause (3) of Section 4.08(a)) hereof;
(8) any agreement for the sale or other disposition of all or a portion of the Capital Stock or assets of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(9) Permitted Refinancing Indebtedness; provided that that, in the good faith judgment of the Company, the encumbrances and restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, in the reasonable good faith judgment of an Officer of the Company, (x) are not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinancedrefinanced and (y) will not materially affect the Company’s ability to make anticipated principal and interest payments on the Notes when due;
(10) Liens permitted to be incurred under the provisions of Section 4.12 hereof that limit the right of the debtor to dispose of the assets subject to such Liens;
(11) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment) entered into with the approval of the Company’s Board of Directors), which limitation is applicable only to the assets that are the subject of such agreements;; and
(12) encumbrances or restrictions applicable only to a Restricted Subsidiary that is not a Domestic Subsidiary;
(13) encumbrances or restrictions on cash or other deposits or net worth imposed by customers or lessors under contracts or leases entered into in the ordinary course of business;
(14) customary encumbrances and restrictions contained in agreements of the types described in the definition of Permitted Business Investments;
(15) agreements governing Hedging Obligations incurred in the ordinary course of business; and
(16) any encumbrance or restriction with respect to an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Unrestricted Subsidiary. In each case set forth above, notwithstanding any stated limitation on the assets or property that may be subject to such encumbrance or restriction, an encumbrance or restriction on a specified asset or property or group or type of assets or property may also apply to all improvements, additions, repairs, attachments or accessions thereto, assets and property affixed or appurtenant thereto, parts, replacements and substitutions therefor, and all products and proceeds thereof, including dividends, distributions, interest and increases in respect thereof.
Appears in 1 contract
Sources: Indenture (Coeur D Alene Mines Corp)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company Partnership will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock to the Company Partnership or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Company Partnership or any of its Restricted Subsidiaries; provided that (i) the priority that any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends, distributions dividends or liquidating distributions before dividends, distributions dividends or liquidating distributions are paid in respect of common stock of such Restricted Subsidiary shall not constitute a restriction on the ability to pay or make dividends or distributions on Capital Stock for purposes of this Section 4.084.08 and (ii) the subordination of Indebtedness owed to the Partnership or any Restricted Subsidiary to other Indebtedness incurred by any Restricted Subsidiary shall not be deemed a restriction on the ability to pay Indebtedness;
(2) make loans or advances to the Company Partnership or any of its Restricted Subsidiaries (it being understood that the subordination of loans or advances made to the Company Partnership or any of its Restricted Subsidiaries Subsidiary to other Indebtedness incurred by the Company Partnership or any of its Restricted Subsidiaries Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its properties or assets to the Company Partnership or any of its Restricted Subsidiaries.
(b) The restrictions in Section 4.08(a) hereof will not apply to encumbrances or restrictions existing under or by reason of:
(1) agreements governing Existing Indebtedness (including the indenture governing the Existing Senior Notes) and the Credit Agreement Facilities as in effect on the date of this Indenture and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained in the amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are not in the good faith judgment of an Officer of the Company materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements on the date of this Indenture, as determined in good faith by the Partnership;
(2) this Indenture, the Notes and the Note Guarantees;
(3) agreements governing other Indebtedness permitted to be incurred under the provisions of Section 4.09 hereof and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained therein are in the reasonable good faith judgment of an Officer of the Company, either (a) not materially more restrictive, taken as a whole, than those contained in this Indenture, the Notes and the Note Guarantees Guarantees, the indenture governing the Existing Senior Notes or the Credit Agreement as in effect on the date of this Indenture or (b) not reasonably likely to have a material adverse effect on Indenture, as determined in good faith by the ability of the Company to make required payments on the NotesPartnership;
(4) applicable law, rule, regulation regulation, order, approval, license, permit or ordersimilar restriction;
(5) any instrument governing Indebtedness or Capital Stock or other agreement of a Person acquired (including by merger or consolidation), or the assets of which are acquired, by the Company Partnership or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness or Capital Stock or other agreement was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, and any amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings thereof; provided, that the encumbrances and restrictions in any such amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings are, in the reasonable good faith judgment of an Officer of the Company, no more restrictive, taken as a whole, than those in effect on the date of the acquisition; provided further, that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be incurred;
(6) customary non-assignment provisions in Hydrocarbon purchase and sale or exchange agreements or similar operational agreements or in licenses, easements or leases, in each case, entered into in the ordinary course of business;
(7) purchase money obligations for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on the property purchased or leased of the nature described in clause (3) of Section 4.08(a);
(8) any agreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(9) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, in the reasonable good faith judgment of an Officer of the Company, are not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced, as determined in good faith by the Partnership;
(10) Liens permitted to be incurred under the provisions of Section 4.12 that limit the right of the debtor to dispose of the assets subject to such Liens;
(11) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements, shareholders’ agreements, partnership agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment) entered into with the approval of the Company’s Board of Directors, which limitation is applicable only to the assets that are the subject of such agreements;
(12) encumbrances or restrictions applicable only to a Restricted Subsidiary that is not a Domestic Subsidiary;
(13) encumbrances or restrictions on cash or other deposits or net worth imposed by customers or lessors under contracts or leases entered into in the ordinary course of business;
(14) customary encumbrances and restrictions contained in agreements of the types described in the definition of Permitted Business Investments;
(15) agreements governing Hedging Obligations incurred in the ordinary course of business; and
(16) any encumbrance or restriction with respect to an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Unrestricted Subsidiary. In each case set forth above, notwithstanding any stated limitation on the assets or property that may be subject to such encumbrance or restriction, an encumbrance or restriction on a specified asset or property or group or type of assets or property may also apply to all improvements, additions, repairs, attachments or accessions thereto, assets and property affixed or appurtenant thereto, parts, replacements and substitutions therefor, and all products and proceeds thereof, including dividends, distributions, interest and increases in respect thereof.Restricted
Appears in 1 contract
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company Issuer will not, and will shall not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1i) pay dividends or make any other distributions on its Capital Stock to the Company Issuer or any of its Restricted SubsidiariesSubsidiary, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Company Issuer or any of its Restricted Subsidiaries; provided that the priority that any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends, distributions or liquidating distributions before dividends, distributions or liquidating distributions are paid in respect of common stock of such Restricted Subsidiary shall not constitute a restriction on the ability to make dividends or distributions on Capital Stock for purposes of this Section 4.08Subsidiary;
(2ii) make loans or advances to the Company Issuer or any of its Restricted Subsidiaries (it being understood that the subordination of loans or advances made to the Company or any of its Restricted Subsidiaries to other Indebtedness incurred by the Company or any of its Restricted Subsidiaries shall not be deemed a restriction on the ability to make loans or advances)Subsidiary; or
(3iii) sell, lease or transfer any of its properties or assets to the Company Issuer or any Restricted Subsidiary; provided that (x) the priority of its any preferred stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock, (y) the subordination of (including the application of any standstill period to) loans or advances made to the Issuer or any Restricted SubsidiariesSubsidiary to other Indebtedness incurred by the Issuer or any Restricted Subsidiary and (z) the provisions contained in documentation governing or relating to Indebtedness requiring transactions between or among the Issuer and any Restricted Subsidiary or between or among any Restricted Subsidiaries to be on fair and reasonable terms or on an arm’s-length basis, in each case, shall not be deemed to constitute such an encumbrance or restriction.
(b) The restrictions in provisions of Section 4.08(a4.16(a) hereof will above shall not apply to encumbrances or restrictions existing under or by reason of:
(1i) agreements or instruments governing Existing or relating to Indebtedness and the Credit Agreement as in effect on the date of this Indenture Issue Date (including, but not limited to, the Existing Notes, the Existing Credit Facilities and the Existing ECA Facilities) and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that , whether or not such Indebtedness is incurred concurrently with or subsequent to the encumbrances or restrictions contained in the amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are not in the good faith judgment of an Officer issuance of the Company materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements on the date of this IndentureNotes;
(2ii) this Indenture, the Notes Notes, the Note Guarantees and the Note GuaranteesSecurity Documents;
(3iii) customary provisions contained in agreements or instruments governing other Indebtedness permitted to be incurred under the provisions of Section 4.09 hereof 4.06 and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained therein are in the reasonable good faith judgment of an Officer of the Company, either (a) not materially more restrictive, taken as a whole, than those contained in this Indenture, the Notes and the Note Guarantees or the Credit Agreement as in effect on the date of this Indenture or (b) not reasonably likely to have a material adverse effect on the ability of the Company to make required payments on the Notes;
(4iv) applicable law, rule, regulation or orderorder or the terms of any license, authorization, concession or permit;
(5v) any agreement or instrument governing or relating to Indebtedness or Capital Stock of a Person acquired by the Company Issuer or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness other than any agreement or Capital Stock was incurred instrument entered into in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, and any amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings thereof; provided, that the encumbrances and restrictions in any such amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings are, in the reasonable good faith judgment of an Officer of the Company, no more restrictive, taken as a whole, than those in effect on the date of the acquisition; provided further, that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be incurred;
(6vi) customary non-assignment and similar provisions in Hydrocarbon purchase contracts, leases and sale or exchange agreements or similar operational agreements or in licenses, easements or leases, in each case, licenses entered into in the ordinary course of business;
(7vii) purchase money obligations for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on the property purchased or leased of the nature described set forth in clause (3Section 4.16(a)(iii) or any encumbrance or restriction pursuant to a joint venture agreement or similar arrangement that imposes restrictions on the transfer of Section 4.08(a)the assets of the joint venture or similar arrangement;
(8) viii) any agreement for the sale or other disposition of the Capital Stock or all or substantially all of the property and assets of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(9ix) Permitted Refinancing Indebtedness; provided that either (i) the restrictions contained in the agreements or instruments governing such Permitted Refinancing Indebtedness are, in the reasonable good faith judgment of an Officer of the Company, are not materially more restrictive, taken as a whole, than those contained in the agreements or instruments governing the Indebtedness being refinancedrefinanced or (ii) the Company determines at the time of the incurrence of such Indebtedness that such encumbrances or restrictions will not adversely affect, in any material respect, the Issuer’s ability to make principal or interest payments on the Notes;
(10x) Liens permitted to be incurred under the provisions of Section 4.12 4.07 that limit the right of the debtor to dispose of the assets subject to such Liens;
(11xi) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment) entered into with the approval of the CompanyIssuer’s Board of Directors, which limitation is applicable only to the assets that are the subject of such agreements;
(12xii) encumbrances or restrictions applicable only to a Restricted Subsidiary that is not a Domestic Subsidiary;
(13) encumbrances or restrictions on cash or other deposits or net worth imposed by customers or lessors suppliers or required by insurance, surety or bonding companies, in each case, under contracts or leases entered into in the ordinary course of business;
(14xiii) any customary encumbrances Productive Asset Leases for Vessels and restrictions contained in agreements of the types described in the definition of Permitted Business Investments;
(15) agreements governing Hedging Obligations incurred other assets used in the ordinary course of business; andprovided that such encumbrance or restriction only extends to the Vessel or other asset financed in such Productive Asset Lease;
(16xiv) any encumbrance or restriction existing with respect to an any Unrestricted Subsidiary pursuant to or by reason the property or assets of an agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became that is designated as a Restricted Subsidiary in accordance with the terms of this Indenture at the time of such designation and not incurred in contemplation of such designation, which encumbrances or restrictions are not applicable to any Person other than such Unrestricted Subsidiary or the property or assets of such Unrestricted Subsidiary; provided that the encumbrances or restrictions are customary for the business of such agreement was not entered into in anticipation Unrestricted Subsidiary and would not, at the time agreed to, be expected to affect the ability of the Unrestricted Subsidiary becoming a Restricted Subsidiary Issuer and the Guarantors to make payments under the Notes and this Indenture;
(xv) customary encumbrances or restrictions contained in agreements in connection with Hedging Obligations permitted under this Indenture;
(xvi) [reserved]; and
(xvii) any such encumbrance or restriction does not extend existing under any agreement that extends, renews, refinances, replaces, amends, modifies, restates or supplements the agreements containing the encumbrances or restrictions in the foregoing clauses (i) through (xvi), or in this clause (xvii); provided that the terms and conditions of any such encumbrances or restrictions are no more restrictive in any material respect than those under or pursuant to any assets the agreement so extended, renewed, refinanced, replaced, amended, modified, restated or property of the Company or any other Restricted Subsidiary other than the assets and property of such Unrestricted Subsidiary. In each case set forth above, notwithstanding any stated limitation on the assets or property that may be subject to such encumbrance or restriction, an encumbrance or restriction on a specified asset or property or group or type of assets or property may also apply to all improvements, additions, repairs, attachments or accessions thereto, assets and property affixed or appurtenant thereto, parts, replacements and substitutions therefor, and all products and proceeds thereof, including dividends, distributions, interest and increases in respect thereofsupplemented.
Appears in 1 contract
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock to the Company or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Company or any of its Restricted Subsidiaries; provided that the priority that any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends, distributions or liquidating distributions before dividends, distributions or liquidating distributions are paid in respect of common stock of such Restricted Subsidiary shall not constitute a restriction on the ability to make dividends or distributions on Capital Stock for purposes of this Section 4.08;
(2) make loans or advances to the Company or any of its Restricted Subsidiaries (it being understood that the subordination of loans or advances made to the Company or any of its Restricted Subsidiaries to other Indebtedness incurred by the Company or any of its Restricted Subsidiaries shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its properties or assets to the Company or any of its Restricted Subsidiaries.
(b) The However, the restrictions in Section 4.08(a) hereof will not apply to encumbrances or restrictions existing under or by reason of:
(1) agreements governing Existing Indebtedness and the Credit Agreement as in effect on the date of this Indenture and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained in the amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are not in the good faith judgment of an Officer of the Company materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements on the date of this Indenture;
(2) this Indenture, the Notes and the Note Guarantees;
(3) agreements governing other Indebtedness permitted to be incurred under the provisions of Section 4.09 hereof and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained therein are are, in the reasonable good faith judgment of an Officer of the Company, either (a) not materially more restrictive, taken as a whole, than those contained in this Indenture, the Notes and the Note Guarantees or the Credit Agreement as in effect on the date of this Indenture or (b) not reasonably likely to have a material adverse effect on the ability of the Company to make required payments on the Notes;
(4) applicable law, rule, regulation or order;
(5) any instrument governing Indebtedness or Capital Stock of a Person acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness or Capital Stock was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, and any amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings thereof; provided, that the encumbrances and restrictions in any such amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings are, in the reasonable good faith judgment of an Officer of the Company, no more restrictive, taken as a whole, than those in effect on the date of the acquisition; provided further, that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be incurred;
(6) customary non-assignment provisions in Hydrocarbon purchase and sale or exchange agreements or similar operational agreements or in licenses, easements or leases, in each case, entered into in the ordinary course of business;
(7) purchase money obligations for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on the property purchased or leased of the nature described in clause (3) of Section 4.08(a)) hereof;
(8) any agreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(9) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, in the reasonable good faith judgment of an Officer of the Company, not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(10) Liens permitted to be incurred under the provisions of Section 4.12 hereof that limit the right of the debtor to dispose of the assets subject to such Liens;
(11) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment) entered into with the approval of the Company’s Board of Directors, which limitation is applicable only to the assets that are the subject of such agreements;
(12) encumbrances or restrictions applicable only to a Restricted Subsidiary that is not a Domestic Subsidiary;
(13) encumbrances or restrictions on cash or other deposits or net worth imposed by customers or lessors under contracts or leases entered into in the ordinary course of business;
(14) customary encumbrances and restrictions contained in agreements of the types described in the definition of “Permitted Business Investments;”
(15) agreements governing Hedging Obligations incurred in the ordinary course of businessObligations; and
(16) any encumbrance or restriction with respect to an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Unrestricted Subsidiary. In each case set forth above, notwithstanding any stated limitation on the assets or property that may be subject to such encumbrance or restriction, an encumbrance or restriction on a specified asset or property or group or type of assets or property may also apply to all improvements, additions, repairs, attachments or accessions thereto, assets and property affixed or appurtenant thereto, parts, replacements and substitutions therefor, and all products and proceeds thereof, including dividends, distributions, interest and increases in respect thereof.
Appears in 1 contract
Sources: Indenture (Comstock Resources Inc)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock to the Company or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness Debt owed to the Company or any of its Restricted Subsidiaries; provided that the priority that any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends, distributions or liquidating distributions before dividends, distributions or liquidating distributions are paid in respect of common stock of such Restricted Subsidiary shall not constitute a restriction on the ability to make dividends or distributions on Capital Stock for purposes of this Section 4.08;
(2) make loans or advances to the Company or any of its Restricted Subsidiaries (it being understood that the subordination of loans or advances made to the Company or any of its Restricted Subsidiaries to other Indebtedness incurred by the Company or any of its Restricted Subsidiaries shall not be deemed a restriction on the ability to make loans or advances)Subsidiaries; or
(3) sell, lease or transfer any of its properties or assets to the Company or any of its Restricted Subsidiaries.
(b) The restrictions in foregoing Section 4.08(a4.12(a) hereof will not apply to encumbrances or restrictions existing under or by reason of:
(1) the Facility, the Corporate Revolver and the LC Facility and other agreements governing Existing Indebtedness existing Debt and the Credit Agreement Facilities, in each case as in effect on the date of this Indenture Issue Date and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained in the amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of existing Debt are not not, in the good faith judgment of an Officer of the Company Company, materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements on the date of this IndentureIssue Date;
(2) this Indenture, the Notes Notes, the Note Guarantees and the Note GuaranteesSecurity Documents;
(3) agreements governing other Indebtedness Debt permitted to be incurred under the provisions of Incurred pursuant to Section 4.09 hereof and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided (A) that the encumbrances or and restrictions contained therein are not materially more disadvantageous to the holders of the Notes than is customary in comparable financings (as determined in the reasonable good faith judgment of an Officer of the Company, ) and (B) either (ax) not materially more restrictive, taken as a whole, than those contained in this Indenture, the Notes and the Note Guarantees or the Credit Agreement as in effect on the date of this Indenture or (b) not reasonably likely to have a material adverse effect on the ability of the Company determines that such encumbrance or restriction will not adversely affect the Company’s ability to make required principal and interest payments on the Notesnotes as and when they come due or (y) such encumbrances and restrictions apply only during the continuance of a default in respect of a payment or financial maintenance covenant relating to such Debt;
(4) applicable law, rule, regulation or order;
(5) any instrument or agreement governing Indebtedness Debt or Capital Stock of a Person acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness Debt or Capital Stock was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, and any amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings thereof; provided, that the encumbrances and restrictions in any such amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings are, in the reasonable good faith judgment of an Officer of the Company, no more restrictive, taken as a whole, than those in effect on the date of the acquisition; provided further, that, that in the case of IndebtednessDebt, such Indebtedness Debt was permitted by the terms of this Indenture to be incurredIncurred;
(6) customary non-assignment provisions in Hydrocarbon purchase contracts and sale or exchange agreements or similar operational agreements or in licenses, easements or leases, in each case, licenses entered into in the ordinary course of business;
(7) purchase money obligations in the case of Section 4.12(a)(3), any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties), license or similar contract, or the assignment or transfer of any such lease (including leases governing leasehold interests or farm-in agreements or farm-out agreements relating to leasehold interests in Oil and Gas Properties), license (including, without limitation, licenses of intellectual property) or other contract;
(B) contained in mortgages, pledges or other security agreements permitted under an indenture securing Debt of the Company or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements;
(C) contained in any agreement creating Hedging Obligations permitted from time to time under this Indenture;
(D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary; or
(E) restrictions on cash or other deposits imposed by customers under contracts entered into in the ordinary course of business;
(8) provisions with respect to the disposition or distribution of assets or property in operating agreements, joint venture agreements, development agreements, area of mutual interest agreements and other agreements that are customary in the Oil and Gas Business and entered into in the ordinary course of business, which provisions apply only to the assets that are the subject of such agreements;
(9) Purchase Money Obligations for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on the property purchased or leased of the nature described in clause (3) of Section 4.08(a4.12(a)(3);
(8) 10) any agreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(911) Permitted Refinancing IndebtednessDebt; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, in the reasonable good faith judgment of an Officer of the Company, Debt are not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness Debt being refinanced;
(1012) Liens permitted to be incurred under the provisions of pursuant to Section 4.12 that limit the right of the debtor to dispose of the assets subject to such Liens;
(11) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment) entered into with the approval of the Company’s Board of Directors, which limitation is applicable only to the assets that are the subject of such agreements;
(12) encumbrances or restrictions applicable only to a Restricted Subsidiary that is not a Domestic Subsidiary4.10;
(13) encumbrances or restrictions on cash or other deposits or net worth imposed by customers or lessors under contracts or leases entered into in the ordinary course of business;Project Finance Debt; and
(14) customary encumbrances and restrictions contained in agreements of the types described in the definition of any agreement or instrument governing a Permitted Business Investments;
(15) agreements governing Hedging Obligations incurred in the ordinary course of business; and
(16) any encumbrance or restriction with respect to an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Unrestricted Subsidiary. In each case set forth above, notwithstanding any stated limitation on the assets or property that may be subject to such encumbrance or restriction, an encumbrance or restriction on a specified asset or property or group or type of assets or property may also apply to all improvements, additions, repairs, attachments or accessions thereto, assets and property affixed or appurtenant thereto, parts, replacements and substitutions therefor, and all products and proceeds thereof, including dividends, distributions, interest and increases in respect thereofInvestment.
Appears in 1 contract
Sources: Senior Secured Notes Indenture (Kosmos Energy Ltd.)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company Issuer will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock to the Company Issuer or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Company Issuer or any of its Restricted Subsidiaries; provided that the priority that any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends, distributions dividends or liquidating distributions before dividends, distributions dividends or liquidating distributions are paid in respect of common stock of such Restricted Subsidiary shall not constitute a restriction on the ability to make dividends or distributions on Capital Stock for purposes of this Section 4.08;
(2) make loans or advances to the Company Issuer or any of its Restricted Subsidiaries (it being understood that the subordination of loans or advances made to the Company Issuer or any of its Restricted Subsidiaries Subsidiary to other Indebtedness incurred by the Company Issuer or any of its Restricted Subsidiaries Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its properties or assets to the Company Issuer or any of its Restricted Subsidiaries.
(b) The restrictions in Section 4.08(a) hereof will not apply to encumbrances or restrictions existing under or by reason of:
(1) agreements and instruments (including those governing Existing Indebtedness and the Credit Agreement Facilities) as in effect on the date of this Indenture and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained in the amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are not in the good faith judgment of an Officer of the Company materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements on the date of this Indenture;
(2) this Indenture, the Notes Notes, the Note Guarantees and the Note GuaranteesSecurity Documents;
(3) agreements governing other Indebtedness permitted to be incurred under the provisions of Section 4.09 hereof and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained therein are in the reasonable good faith judgment of an Officer of the Company, either (a) not materially more restrictive, taken as a whole, than those contained in this Indenture, the Notes and the Note Guarantees or the Credit Agreement as in effect on the date of this Indenture or (b) not reasonably likely to have a material adverse effect on the ability of the Company to make required payments on the NotesGuarantees;
(4) any applicable law, rule, regulation regulation, approval, license, permit or order;
(5) any agreement or instrument governing Indebtedness or Capital Stock of a Person acquired by the Company Issuer or any of its Restricted Subsidiaries (including those governing Indebtedness or Capital Stock) as in effect at the time of such acquisition (except to the extent such Indebtedness or Capital Stock was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, and any amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings thereof; provided, that the encumbrances and restrictions in any such amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings are, in the reasonable good faith judgment of an Officer of the Company, no more restrictive, taken as a whole, than those in effect on the date of the acquisition; provided further, that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be incurred;
(6) customary non-assignment provisions in Hydrocarbon purchase contracts, leases and sale or exchange agreements or similar operational agreements or in licenses, easements or leases, in each case, licenses entered into in the ordinary course of business;
(7) purchase money obligations for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on the property purchased or leased of the nature described in clause (3) of Section 4.08(a)) above;
(8) any agreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(9) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, in the reasonable good faith judgment of an Officer of the Company, are not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(10) Liens permitted to be incurred under the provisions of Section 4.12 hereof that limit the right of the debtor to dispose of the assets subject to such Liens;
(11) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-sale and leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment) entered into with the approval of the Company’s Board of Directors), which limitation is applicable only to the assets that are the subject of such agreements;
(12) encumbrances or restrictions applicable only to a Restricted Subsidiary that is not a Domestic Subsidiary;
(13) encumbrances or restrictions on cash or other deposits or net worth imposed by customers customers, lessors, suppliers, or lessors under contracts or leases entered into required by insurance surety bonding companies, in each case in the ordinary course of business;
(13) in the case of any Foreign Subsidiary, any encumbrance or restriction contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was incurred if either (a) the encumbrance or restriction applies only in the event of a Payment Default or a default with respect to a financial covenant in such Indebtedness or agreement or (b) the Issuer determines that any such encumbrance of restriction will not materially affect the Issuer’s ability to make principal or interest payments on the Notes, as determined in good faith by the Board of Directors of the Issuer, whose determination shall be conclusive;
(14) customary for any purpose not otherwise prohibited by this Indenture, encumbrances and or restrictions contained in agreements of the types type described in clause (3) of Section 4.08(a) above arising or agreed to (i) in the definition ordinary course of Permitted Business Investmentsbusiness that restrict in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license, conveyance or similar contract, including with respect to intellectual property, (ii) that restrict in a customary manner, pursuant to provisions in partnership agreements, limited liability company organizational governance documents, joint venture agreements and other similar agreements, the transfer of ownership interests in, or assets of, such partnership, limited liability company, joint venture or similar Person or (iii) by virtue of any Lien on, or agreement to transfer, option or similar right with respect to any property or assets of, the Issuer or any Restricted Subsidiary;
(15) agreements governing Hedging Obligations incurred in the ordinary course of business; and
(16) any encumbrance encumbrances or restriction restrictions with respect to an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company Issuer or any other Restricted Subsidiary other than the assets and property of such Unrestricted Subsidiary. In each case set forth above, notwithstanding any stated limitation on the ;
(16) customary restrictions in respect of assets or contract rights acquired by a Restricted Subsidiary in connection with a permitted sale and leaseback transaction; and
(17) any agreement or instrument relating to any property that may be subject to or assets acquired after the date of this Indenture, so long as such encumbrance or restriction, an encumbrance or restriction on a specified asset or relates only to the property or group or type assets so acquired and is not and was not created in anticipation of assets or property may also apply to all improvements, additions, repairs, attachments or accessions thereto, assets and property affixed or appurtenant thereto, parts, replacements and substitutions therefor, and all products and proceeds thereof, including dividends, distributions, interest and increases in respect thereofsuch acquisition.
Appears in 1 contract
Sources: Indenture (SunCoke Energy, Inc.)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock to the Company or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness indebtedness owed to the Company or any of its Restricted Subsidiaries; provided that the priority that any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends, distributions or liquidating distributions before dividends, distributions or liquidating distributions are paid in respect of common stock of such Restricted Subsidiary shall not constitute a restriction on the ability to make dividends or distributions on Capital Stock for purposes of this Section 4.08;
(2) make loans or advances to the Company or any of its Restricted Subsidiaries (it being understood that the subordination of loans or advances made to the Company or any of its Restricted Subsidiaries to other Indebtedness incurred by the Company or any of its Restricted Subsidiaries shall not be deemed a restriction on the ability to make loans or advances)Subsidiaries; or
(3) sell, lease or transfer any of its properties or assets to the Company or any of its Restricted Subsidiaries.
(b) The . However, the preceding restrictions in Section 4.08(a) hereof will not apply to encumbrances or restrictions existing under or by reason of:
(1) agreements governing Existing Indebtedness and the Credit Agreement Facilities as in effect on the date of this Indenture and any amendments, modifications, restatements, modificationsrenewals, renewalsincreases, supplements, refundings, replacements or refinancings of those agreements; provided , PROVIDED that the encumbrances or restrictions contained in the amendments, modifications, restatements, modificationsrenewals, renewalsincreases, supplements, refundings, replacements replacement or refinancings are not in the good faith judgment of an Officer of the Company materially no more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements or the Security Documents on the date of this Indenture;
(2) this Indenture, the Notes, the Senior Subordinated Notes and the Note related Subsidiary Guarantees and the Exchange Notes and related Subsidiary Guarantees, relating to the Notes and the Senior Subordinated Notes or the Second-Lien Security Documents;
(3) agreements governing other Indebtedness permitted to be incurred under the provisions of Section 4.09 hereof and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained therein are in the reasonable good faith judgment of an Officer of the Company, either (a) not materially more restrictive, taken as a whole, than those contained in this Indenture, the Notes and the Note Guarantees or the Credit Agreement as in effect on the date of this Indenture or (b) not reasonably likely to have a material adverse effect on the ability of the Company to make required payments on the Notes;
(4) applicable law, rule, regulation or order;
(54) any instrument governing Indebtedness or Capital Stock of a Person acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness or Capital Stock was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, and any amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings thereof; provided, that the encumbrances and restrictions in any such amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings are, in the reasonable good faith judgment of an Officer of the Company, no more restrictive, taken as a whole, than those in effect on the date of the acquisition; provided further, PROVIDED that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be incurred;
(65) customary non-assignment provisions in Hydrocarbon purchase and sale or exchange agreements or similar operational agreements or in licenses, easements or leases, in each case, leases entered into in the ordinary course of businessbusiness and consistent with past practices;
(76) purchase money obligations for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on the that property purchased or leased of the nature described in clause (3) of Section 4.08(a)the preceding paragraph;
(8) 7) any agreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(9) 8) Permitted Refinancing Indebtedness; provided , PROVIDED that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, in the reasonable good faith judgment of an Officer of the Company, not materially are no more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(109) Liens securing Indebtedness otherwise permitted to be incurred under the provisions of Section 4.12 that limit the right of the debtor to dispose of the assets subject to such Liens;
(1110) provisions limiting with respect to the disposition or distribution of assets or property in joint venture agreements, asset assets sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment) entered into with the approval ordinary course of the Company’s Board of Directors, which limitation is applicable only to the assets that are the subject of such agreements;business; and
(1211) encumbrances or restrictions applicable only to a Restricted Subsidiary that is not a Domestic Subsidiary;
(13) encumbrances or restrictions on cash or other deposits or net worth imposed by customers or lessors under contracts or leases entered into in the ordinary course of business;
(14) customary encumbrances and restrictions contained in agreements of the types described in the definition of Permitted Business Investments;
(15) agreements governing Hedging Obligations incurred in the ordinary course of business; and
(16) any encumbrance or restriction with respect to an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Unrestricted Subsidiary. In each case set forth above, notwithstanding any stated limitation on the assets or property that may be subject to such encumbrance or restriction, an encumbrance or restriction on a specified asset or property or group or type of assets or property may also apply to all improvements, additions, repairs, attachments or accessions thereto, assets and property affixed or appurtenant thereto, parts, replacements and substitutions therefor, and all products and proceeds thereof, including dividends, distributions, interest and increases in respect thereof.
Appears in 1 contract
Sources: Indenture (H&e Finance Corp)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company Parent will not, and will not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1i) pay dividends or make any other distributions on its Capital Stock to the Company Parent or any of its Restricted SubsidiariesSubsidiary, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Company Parent or any of its Restricted Subsidiaries; provided that the priority that any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends, distributions or liquidating distributions before dividends, distributions or liquidating distributions are paid in respect of common stock of such Restricted Subsidiary shall not constitute a restriction on the ability to make dividends or distributions on Capital Stock for purposes of this Section 4.08Subsidiary;
(2ii) make loans or advances to the Company Parent or any of its Restricted Subsidiaries (it being understood that the subordination of loans or advances made to the Company or any of its Restricted Subsidiaries to other Indebtedness incurred by the Company or any of its Restricted Subsidiaries shall not be deemed a restriction on the ability to make loans or advances)Subsidiary; or
(3iii) sell, lease or transfer any of its properties or assets to the Company Parent or any Restricted Subsidiary, provided that (x) the priority of its any preferred stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill period to) loans or advances made to the Parent or any Restricted SubsidiariesSubsidiary to other Indebtedness incurred by the Parent or any Restricted Subsidiary, shall not be deemed to constitute such an encumbrance or restriction.
(b) The However, the preceding restrictions in Section 4.08(a) hereof will not apply to encumbrances or restrictions existing under or by reason of:
(1i) agreements governing Existing Indebtedness and the Credit Agreement Facilities as in effect on the date of this Indenture Issue Date and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained in the amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are not in the good faith judgment of an Officer of the Company materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements on the date of this IndentureIssue Date;
(2ii) this Indenture, the Notes and the Note Guarantees, the 2017 Indenture, the 2017 Notes and the 2017 Note Guarantees, the New OeKB Facility, the 2014 Indenture, the 2014 Notes the 2014 Note Guarantees, the 2018 Indenture, the 2018 Notes and the 2018 Note Guarantees, the 2021 Indenture, the 2021 Notes and the 2021 Note Guarantees, the Revolving Credit Facility, the Bank Austria Facility, the Intercreditor Agreement and the Collateral Documents;
(3iii) agreements governing other Indebtedness permitted to be incurred under the provisions of Section 4.09 hereof and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the restrictions therein are not materially less favorable to the holders of the Notes than is customary in comparable financings (as determined in good faith by the Parent) or the Parent determines at the time of the incurrence of such Indebtedness that such encumbrances or restrictions contained therein are will not adversely affect, in the reasonable good faith judgment of an Officer of the Company, either (a) not materially more restrictive, taken as a whole, than those contained in this Indentureany material respect, the Notes and the Note Guarantees or the Credit Agreement as in effect on the date of this Indenture or (b) not reasonably likely to have a material adverse effect on the Issuer’s ability of the Company to make required principal or interest payments on the Notes;
(4iv) applicable law, rule, regulation or orderorder or the terms of any license, authorization, concession or permit;
(5v) any instrument governing Indebtedness or Capital Stock of a Person acquired by the Company Parent or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness or Capital Stock was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, and any amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings thereof; provided, that the encumbrances and restrictions in any such amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings are, in the reasonable good faith judgment of an Officer of the Company, no more restrictive, taken as a whole, than those in effect on the date of the acquisition; provided further, that, in the case of Indebtedness, such Indebtedness was permitted to be incurred by the terms of this Indenture to be incurredIndenture;
(6vi) customary non-assignment and similar provisions in Hydrocarbon purchase contracts, leases and sale or exchange agreements or similar operational agreements or in licenses, easements or leases, in each case, licenses entered into in the ordinary course of business;
(7vii) purchase money obligations for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on the property purchased or leased of the nature described in clause (3) of Section 4.08(a4.08(a)(iii);
(8) viii) any agreement for the sale or other disposition of the Capital Stock or all or substantially all of the property and assets of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(9ix) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, in the reasonable good faith judgment of an Officer of the Company, are not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(10x) Liens permitted to be incurred under the provisions of Section 4.12 that limit the right of the debtor to dispose of the assets subject to such Liens;
(11xi) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment) entered into with the approval of the Company’s Board of Directors), which limitation is applicable only to the assets that are the subject of such agreements;
(12xii) encumbrances or restrictions applicable only to a Restricted Subsidiary that is not a Domestic Subsidiary;
(13) encumbrances or restrictions on cash or other deposits or net worth imposed by customers or lessors suppliers or required by insurance, surety or bonding companies or imposed by leases, in each case, under contracts or leases entered into in the ordinary course of business;
(14) customary encumbrances and restrictions contained in agreements of the types described in the definition of Permitted Business Investments;
(15) agreements governing Hedging Obligations incurred in the ordinary course of business; and
(16xiii) any encumbrance or restriction of a Securitization Subsidiary effected in connection with respect a Qualified Securitization Financing; provided, however, that such restrictions apply only to an Unrestricted Subsidiary pursuant to or by reason of an such Securitization Subsidiary;
(xiv) Hedging Obligations; and
(xv) any agreement that extends, renews, refinances or replaces the Unrestricted Subsidiary is a party to agreements containing the encumbrances or entered into before restrictions in the date on which such Unrestricted Subsidiary became a Restricted Subsidiaryforegoing Section 4.08(b)(i)—(xiv), or in this clause (xv); provided that such agreement was not entered into in anticipation the terms and conditions of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance encumbrances or restriction does not extend restrictions are no more restrictive in any material respect than those under or pursuant to any assets the agreement so extended, renewed, refinanced or property of the Company or any other Restricted Subsidiary other than the assets and property of such Unrestricted Subsidiary. In each case set forth above, notwithstanding any stated limitation on the assets or property that may be subject to such encumbrance or restriction, an encumbrance or restriction on a specified asset or property or group or type of assets or property may also apply to all improvements, additions, repairs, attachments or accessions thereto, assets and property affixed or appurtenant thereto, parts, replacements and substitutions therefor, and all products and proceeds thereof, including dividends, distributions, interest and increases in respect thereofreplaced.
Appears in 1 contract
Sources: Indenture (Sappi LTD)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1a) pay dividends or make any other distributions on or in respect of its Capital Stock to the Company or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Company or any other of its Restricted Subsidiaries; provided that the priority that any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends, distributions or liquidating distributions before dividends, distributions or liquidating distributions are paid in respect of common stock of such Restricted Subsidiary shall not constitute a restriction on the ability to make dividends or distributions on Capital Stock for purposes of this Section 4.08;
(2b) make any loans or advances to the Company or any other of its Restricted Subsidiaries (it being understood that the subordination of loans or advances made to the Company or any of its Restricted Subsidiaries to other Indebtedness incurred by the Company or any of its Restricted Subsidiaries shall not be deemed a restriction on the ability to make loans or advances); orSubsidiaries;
(3c) sell, lease or transfer any of its properties or assets to the Company or any other of its Restricted Subsidiaries.; or
(bd) The guarantee the Company's obligations. However, the preceding restrictions in Section 4.08(a) hereof will not apply to encumbrances or restrictions existing under or by reason of:
(1i) agreements governing Existing Indebtedness and the Credit Agreement as in effect on the date hereof or subsequent agreements relating to our Indebtedness or Indebtedness of this Indenture any Subsidiary Guarantor and any amendments, modifications, restatements, modificationsrenewals, renewalsincreases, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained in the amendments, modifications, restatements, modificationsrenewals, renewalsincreases, supplements, refundings, replacements replacement or refinancings are not in the good faith judgment of an Officer of the Company materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements on the date of this Indenturehereof;
(2ii) this Indenture, the Notes and the Note Subsidiary Guarantees;
(3iii) agreements governing other Indebtedness permitted to be incurred under the provisions of Section 4.09 hereof and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained therein are in the reasonable good faith judgment of an Officer of the Company, either (a) not materially more restrictive, taken as a whole, than those contained in this Indenture, the Notes and the Note Guarantees or the Credit Agreement as in effect on the date of this Indenture or (b) not reasonably likely to have a material adverse effect on the ability of the Company to make required payments on the Notesapplicable law;
(4) applicable law, rule, regulation or order;
(5iv) any instrument governing Indebtedness or Capital Stock of a Person acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness or Capital Stock was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, and any amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings thereof; provided, that the encumbrances and restrictions in any such amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings are, in the reasonable good faith judgment of an Officer of the Company, no more restrictive, taken as a whole, than those in effect on the date of the acquisition; provided further, that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be incurred;
(6v) customary non-assignment provisions in Hydrocarbon purchase and sale or exchange agreements or similar operational agreements or in licenses, easements or leases, in each case, leases entered into in the ordinary course of business;
(7vi) purchase money obligations for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on the that property purchased or leased of the nature described in clause (3c) of Section 4.08(a)the preceding paragraph;
(8) vii) any agreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(9viii) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, in the reasonable good faith judgment of an Officer of the Company, are not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(10ix) Liens securing Indebtedness otherwise permitted to be incurred under the provisions of Section 4.12 4.11 that limit the right of the debtor to dispose of the assets subject to such Liens;; and
(11x) provisions limiting with respect to the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment) entered into with the approval of the Company’s Board of Directors, which limitation is applicable only to the assets that are the subject of such agreements;
(12) encumbrances or restrictions applicable only to a Restricted Subsidiary that is not a Domestic Subsidiary;
(13) encumbrances or restrictions on cash or other deposits or net worth imposed by customers or lessors under contracts or leases entered into in the ordinary course of business;
(14) customary encumbrances and restrictions contained in agreements of the types described in the definition of Permitted Business Investments;
(15) agreements governing Hedging Obligations incurred in the ordinary course of business; and
(16) any encumbrance or restriction with respect to an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Unrestricted Subsidiary. In each case set forth above, notwithstanding any stated limitation on the assets or property that may be subject to such encumbrance or restriction, an encumbrance or restriction on a specified asset or property or group or type of assets or property may also apply to all improvements, additions, repairs, attachments or accessions thereto, assets and property affixed or appurtenant thereto, parts, replacements and substitutions therefor, and all products and proceeds thereof, including dividends, distributions, interest and increases in respect thereof.
Appears in 1 contract
Sources: Indenture (Gallipolis Care LLC)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Each Parent Company will shall not, and will shall not cause or permit any of its respective Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1i) pay dividends or make any other distributions on its Capital Stock to the its Parent Company or any of its Restricted SubsidiariesSubsidiary, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the relevant Parent Company or any of its Restricted Subsidiaries; provided that the priority that any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends, distributions or liquidating distributions before dividends, distributions or liquidating distributions are paid in respect of common stock of such Restricted Subsidiary shall not constitute a restriction on the ability to make dividends or distributions on Capital Stock for purposes of this Section 4.08Subsidiary;
(2ii) make loans or advances to the its Parent Company or any of its Restricted Subsidiaries (it being understood that the subordination of loans or advances made to the Company or any of its Restricted Subsidiaries to other Indebtedness incurred by the Company or any of its Restricted Subsidiaries shall not be deemed a restriction on the ability to make loans or advances)Subsidiary; or
(3iii) sell, lease or transfer any of its properties or assets to the its Parent Company or any Restricted Subsidiary; provided that (x) the priority of its any preferred stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock, (y) the subordination of (including the application of any standstill period to) loans or advances made to the relevant Parent Company or any Restricted SubsidiariesSubsidiary to other Indebtedness incurred by the relevant Parent Company or any Restricted Subsidiary and (z) the provisions contained in documentation governing or relating to Indebtedness requiring transactions between or among the relevant Parent Company and any Restricted Subsidiary or between or among any Restricted Subsidiaries to be on fair and reasonable terms or on an arm’s-length basis, in each case, shall not be deemed to constitute such an encumbrance or restriction.
(b) The restrictions in provisions of Section 4.08(a4.16(a) hereof will above shall not apply to encumbrances or restrictions existing under or by reason of:
(1i) agreements or instruments governing Existing or relating to Indebtedness and the Credit Agreement as in effect on the date of this Indenture Issue Date (including pursuant to the Convertible Notes, the EIB Facility and, the Existing Multicurrency Facility and the 2027 First-Priority Secured Notes and the related documentation) and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained in the amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are not in the good faith judgment of an Officer of the Company materially more restrictiveless favorable, taken as a whole, to the Holder with respect to such dividend and other payment restrictions than those contained in those agreements or instruments on the date of this IndentureIssue Date (as determined in good faith by the Issuer);
(2ii) this Indenture, the Notes, the Note Guarantees, the Convertible Notes, the Intercreditor Agreement, any Additional Intercreditor Agreement and the Security Documents;the Note Documents, the Intercreditor Agreements, the Existing Term Loan Agreement, the 2028 First-Priority Secured Notes, the 2026 Second-Priority Secured Notes, the 2027 Second-Priority Secured Notes, the 2026 Unsecured Notes and the Note Guarantees2027 Unsecured Notes;
(3iii) agreements or instruments governing other Indebtedness permitted to be incurred under the provisions of Section 4.09 hereof 4.06 and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the Company determines at the time of the incurrence of such Indebtedness that such encumbrances or restrictions contained therein are will not adversely effect, in the reasonable good faith judgment of an Officer of the Company, either (a) not materially more restrictive, taken as a whole, than those contained in this Indentureany material respect, the Notes and the Note Guarantees or the Credit Agreement as in effect on the date of this Indenture or (b) not reasonably likely to have a material adverse effect on the Issuer’s ability of the Company to make required principal or interest payments on the Notes;
(4iv) applicable law, rule, regulation or orderorder or the terms of any license, authorization, concession or permit;
(5v) any agreement or instrument governing or relating to Indebtedness or Capital Stock of a Person acquired by the relevant Parent Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness other than any agreement or Capital Stock was incurred instrument entered into in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, and any amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings thereof; provided, that the encumbrances and restrictions in any such amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings are, in the reasonable good faith judgment of an Officer of the Company, no more restrictive, taken as a whole, than those in effect on the date of the acquisition; provided further, that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be incurred;
(6vi) customary non-assignment and similar provisions in Hydrocarbon purchase contracts, leases and sale or exchange agreements or similar operational agreements or in licenses, easements or leases, in each case, licenses entered into in the ordinary course of business;
(7vii) purchase money obligations for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on the property purchased or leased of the nature described set forth in clause (3Section 4.16(a)(iii) or any encumbrance or restriction pursuant to a joint venture agreement that imposes restrictions on the transfer of Section 4.08(a)the assets of the joint venture;
(8) viii) any agreement for the sale or other disposition of the Capital Stock or all or substantially all of the property and assets of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(9ix) Permitted Refinancing Indebtedness; provided that either (i) the restrictions contained in the agreements or instruments governing such Permitted Refinancing Indebtedness are, in the reasonable good faith judgment of an Officer of the Company, are not materially more restrictive, taken as a whole, than those contained in the agreements or instruments governing the Indebtedness being refinancedrefinanced or (ii) the Company determines at the time of the incurrence of such Indebtedness that such encumbrances or restrictions will not adversely effect, in any material respect, the Issuer’s ability to make principal or interest payments on the Notes;
(10x) Liens permitted to be incurred under the provisions of Section 4.12 4.07 that limit the right of the debtor to dispose of the assets subject to such Liens;
(11xi) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment or Permitted Investment) entered into with the approval of the CompanyIssuer’s Board of Directors, which limitation is applicable only to the assets that are the subject of such agreements;
(12xii) encumbrances or restrictions applicable only to a Restricted Subsidiary that is not a Domestic Subsidiary;
(13) encumbrances or restrictions on cash or other deposits or net worth imposed by customers or lessors suppliers or required by insurance, surety or bonding companies, in each case, under contracts or leases entered into in the ordinary course of business;
(14xiii) any customary encumbrances Productive Asset Leases for Vessels and restrictions contained in agreements of the types described in the definition of Permitted Business Investments;
(15) agreements governing Hedging Obligations incurred other assets used in the ordinary course of business; andprovided that such encumbrance or restriction only extends to the Vessel or other asset financed in such Productive Asset Lease;
(16xiv) any encumbrance or restriction existing with respect to an any Unrestricted Subsidiary pursuant to or by reason the property or assets of an agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became that is designated as a Restricted Subsidiary in accordance with the terms of this Indenture at the time of such designation and not incurred in contemplation of such designation, which encumbrances or restrictions are not applicable to any Person other than such Unrestricted Subsidiary or the property or assets of such Unrestricted Subsidiary; provided that the encumbrances or restrictions are customary for the business of such agreement was not entered into in anticipation Unrestricted Subsidiary and would not, at the time agreed to, be expected to affect the ability of the Unrestricted Subsidiary becoming a Restricted Subsidiary Issuer and the Guarantors to make payments under the Notes and this Indenture;
(xv) customary encumbrances or restrictions contained in agreements in connection with Hedging Obligations permitted under this Indenture;
(xvi) the agreements, constituent documents, guarantees, deeds and other instruments governing the “dual listed company” structure of the Company; and
(xvii) any such encumbrance or restriction does not extend existing under any agreement that extends, renews, refinances, replaces, amends, modifies, restates or supplements the agreements containing the encumbrances or restrictions in the foregoing clauses (i) through (xvi), or in this clause (xvii); provided that the terms and conditions of any such encumbrances or restrictions are no more restrictive in any material respect than those under or pursuant to any assets the agreement so extended, renewed, refinanced, replaced, amended, modified, restated or property of the Company or any other Restricted Subsidiary other than the assets and property of such Unrestricted Subsidiary. In each case set forth above, notwithstanding any stated limitation on the assets or property that may be subject to such encumbrance or restriction, an encumbrance or restriction on a specified asset or property or group or type of assets or property may also apply to all improvements, additions, repairs, attachments or accessions thereto, assets and property affixed or appurtenant thereto, parts, replacements and substitutions therefor, and all products and proceeds thereof, including dividends, distributions, interest and increases in respect thereofsupplemented.
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Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock to the Company or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Company or any of its Restricted Subsidiaries; provided that the priority that any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends, distributions or liquidating distributions before dividends, distributions or liquidating distributions are paid in respect of common stock of such Restricted Subsidiary shall not constitute a restriction on the ability to make dividends or distributions on Capital Stock for purposes of this Section 4.08;
(2) make loans or advances to the Company or any of its Restricted Subsidiaries (it being understood that the subordination of loans or advances made to the Company or any of its Restricted Subsidiaries to other Indebtedness incurred by the Company or any of its Restricted Subsidiaries shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its properties or assets to the Company or any of its Restricted Subsidiaries.
(b) The restrictions in Section 4.08(a) hereof will not apply to encumbrances or restrictions existing under or by reason of:
(1) agreements governing Existing Indebtedness and the Credit Agreement as in effect on the date of this Indenture Issue Date and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained in the amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are not in the good faith judgment of an Officer of the Company materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements on the date of this IndentureIssue Date;
(2) this Indenture, the Notes and the Note Guarantees;
(3) agreements governing other Indebtedness permitted to be incurred under the provisions of Section 4.09 hereof and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained therein are in the reasonable good faith judgment of an Officer of the Company, either (a) not materially more restrictive, taken as a whole, than those contained in this Indenture, the Notes and the Note Guarantees or the Credit Agreement as in effect on the date of this Indenture Issue Date or (b) not reasonably likely to have a material adverse effect on the ability of the Company to make required payments on the Notes;
(4) applicable law, rule, regulation or order;
(5) any agreement or other instrument governing Indebtedness or Capital Stock of a Person acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness agreement or Capital Stock instrument was incurred created in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the PersonPerson and its Subsidiaries, or the property or assets of the PersonPerson and its Subsidiaries, so acquired, and any amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings thereof; provided, provided that the encumbrances and restrictions in any such amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings are, in the reasonable good faith judgment of an Officer of the Company, no more restrictive, taken as a whole, than those in effect on the date of the acquisition; provided further, that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be incurred;
(6) customary non-assignment provisions in Hydrocarbon purchase and sale or exchange agreements or similar operational agreements or in licenses, easements or leases, in each case, entered into in the ordinary course of business;
(7) purchase money obligations for property acquired in the ordinary course of business and Capital Finance Lease Obligations that impose restrictions on the property purchased or leased of the nature described in clause (3) of Section 4.08(a);
(8) any agreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(9) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, in the reasonable good faith judgment of an Officer of the Company, not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(10) Liens permitted to be incurred under the provisions of Section 4.12 that limit the right of the debtor to dispose of the assets subject to such Liens;
(11) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment) entered into with the approval of the Company’s Board of Directors), which limitation is applicable only to the assets that are the subject of such agreements;
(12) encumbrances or restrictions applicable only to a Restricted Subsidiary that is not a Domestic Subsidiary;
(13) encumbrances or restrictions on cash or other deposits or net worth imposed by customers or lessors under contracts or leases entered into in the ordinary course of business;
(14) customary encumbrances and restrictions contained in agreements of the types described in the definition of “Permitted Business Investments”;
(15) agreements governing Hedging Obligations incurred in the ordinary course of business; and;
(16) any encumbrance or restriction with respect to an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Unrestricted Subsidiary; and
(17) contractual encumbrances or restrictions in effect on the Issue Date and, in each case, any similar contractual encumbrances effected by any amendments, modifications, restatements, renewals, supplements, refundings, replacements or refinancings of such agreements or instruments. In each case set forth above, notwithstanding any stated limitation on the assets or property that may be subject to such encumbrance or restriction, an encumbrance or restriction on a specified asset or property or group or type of assets or property may also apply to all improvements, additions, repairs, attachments or accessions thereto, assets and property affixed or appurtenant thereto, parts, replacements and substitutions therefor, and all products and proceeds thereof, including dividends, distributions, interest and increases in respect thereof.
Appears in 1 contract
Sources: Indenture (HighPeak Energy, Inc.)
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock to the Company or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Company or any of its Restricted Subsidiaries; provided that the priority that any series of Preferred Stock of a Restricted Subsidiary has in receiving dividends, distributions dividends or liquidating distributions before dividends, distributions dividends or liquidating distributions are paid in respect of common stock of such Restricted Subsidiary shall not constitute a restriction on the ability to make dividends or distributions on Capital Stock for purposes of this Section 4.08;
(2) make loans or advances to the Company or any of its Restricted Subsidiaries (it being understood that the subordination of loans or advances made to the Company or any of its Restricted Subsidiaries Subsidiary to other Indebtedness incurred by the Company or any of its Restricted Subsidiaries Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its properties or assets to the Company or any of its Restricted Subsidiaries.
(b) The restrictions in Section 4.08(a) hereof will not apply to encumbrances or restrictions existing under or by reason of:
(1) agreements governing Existing Indebtedness and the Credit Agreement as in effect on the date of this Indenture Issue Date and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained in the amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are not in the good faith judgment of an Officer of the Company materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements on the date of this IndentureIssue Date;
(2) this Indenture, the Notes and the Note GuaranteesDocuments;
(3) agreements governing other Indebtedness permitted to be incurred under the provisions of Section 4.09 hereof and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions contained therein are in the reasonable good faith judgment of an Officer of the Company, either (a) not materially more restrictive, taken as a whole, than those contained in this Indenture, the Notes and the Note Guarantees or the Credit Agreement as in effect on the date of this Indenture or (b) not reasonably likely to have a material adverse effect on the ability of the Company to make required payments on the NotesIssue Date;
(4) applicable law, rule, regulation regulation, order, approval, license, permit or ordersimilar restriction;
(5) any instrument governing Indebtedness or Capital Stock of a Person acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness or Capital Stock was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, and any amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings thereof; provided, that the encumbrances and restrictions in any such amendments, restatements, modifications, renewals, extensions, supplements, increases, refundings, replacements or refinancings are, in the reasonable good faith judgment of an Officer of the Company, no more restrictive, taken as a whole, than those in effect on the date of the acquisition; provided further, that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be incurred;
(6) customary non-assignment provisions in Hydrocarbon purchase and sale or exchange agreements or similar operational agreements or in licenses, easements or leases, in each case, entered into in the ordinary course of business;
(7) purchase money obligations for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on the property purchased or leased of the nature described in clause (3) of Section 4.08(a);
(8) any agreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(9) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, in the reasonable good faith judgment of an Officer of the Company, are not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(10) Liens permitted to be incurred under the provisions of Section 4.12 that limit the right of the debtor to dispose of the assets subject to such Liens;
(11) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment) entered into with the approval of the Company’s Board of Directors, which limitation is applicable only to the assets or property that are the subject of such agreements;
(12) encumbrances any agreement or restrictions applicable instrument relating to any property or assets acquired after the Issue Date, so long as such encumbrance or restriction relates only to a Restricted Subsidiary that the property or assets so acquired and is not a Domestic Subsidiaryand was not created in anticipation of such acquisition;
(13) encumbrances or restrictions on cash cash, Cash Equivalents or other deposits or net worth imposed by customers or lessors under contracts or leases entered into in the ordinary course of business;
(14) customary encumbrances and restrictions contained in agreements the issuance of Preferred Stock by a Restricted Subsidiary of the types described Company or the payment of dividends thereon in accordance with the definition terms thereof; provided that issuance of Permitted Business Investmentssuch Preferred Stock is permitted pursuant to Section 4.09 and the terms of such Preferred Stock do not expressly restrict the ability of a Restricted Subsidiary of the Company to pay dividends or make any other distributions on its Equity Interests (other than requirements to pay dividends or liquidation preferences on such Preferred Stock prior to paying any dividends or making any other distributions on such other Equity Interests);
(15) agreements governing Hedging Obligations incurred in the ordinary course case of business; andany Foreign Subsidiary, any encumbrance or restriction contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was incurred if either (a) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant in such Indebtedness or agreement or (b) the Company determines that any such encumbrance of restriction will not materially affect the Company’s ability to make principal or interest payments on the Notes, as determined in good faith by the Board of Directors of the Company, whose determination shall be conclusive;
(16) restrictions created in connection with any encumbrance Receivables Facility that in the good faith determination of the Company are necessary or restriction with respect advisable to an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which effect such Unrestricted Subsidiary became a Restricted SubsidiaryReceivables Facility; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property of such Unrestricted Subsidiary. In each case set forth above, notwithstanding any stated limitation on the assets or property that may be subject restrictions apply only to such encumbrance or restriction, an encumbrance or restriction on a specified asset or property or group or type of assets or property may also apply to all improvements, additions, repairs, attachments or accessions thereto, assets and property affixed or appurtenant thereto, parts, replacements and substitutions therefor, and all products and proceeds thereof, including dividends, distributions, interest and increases in respect thereofReceivables Subsidiary; or
(17) any Permitted Investment.
Appears in 1 contract